Opinion
F040603.
11-3-2003
THE PEOPLE, Plaintiff and Respondent, v. MANUEL JAY FLORES, Defendant and Appellant.
Francia M. Welker, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On May 8, 2001, the Merced County District Attorney filed an information in superior court charging appellant Manuel Jay Flores as follows: count I—kidnapping in the course of carjacking (Pen. Code,[] § 209.5); count II—kidnapping to commit robbery (§ 209, subd. (b)(1)); count III—carjacking (§ 215, subd. (a)); count IV—kidnapping (§ 207); and count V—robbery (& sect; 211). As to each count, the district attorney specially alleged appellant personally used a firearm in the commission of the offense.
All further statutory references are to the Penal Code unless otherwise indicated.
On November 15, 2001, appellant filed a motion to conduct a live lineup based on the reasonable likelihood of mistaken identification. On December 4, 2001, the superior court denied the motion.
On January 16, 2002, the court impaneled a jury and the presentation of evidence commenced.
On January 25, 2002, the jury found appellant guilty of counts I and II and found the special allegations to be true as to those counts.
On or about May 2, 2002, appellant filed a motion for new trial on the ground of error in a question of law (§ 1181, subd. 5). On May 6, 2002, the court denied appellants motion.
On May 14, 2002, the court conducted a sentencing hearing, denied appellant probation, and sentenced him to state prison for a term of life imprisonment as to count I plus a consecutive term of 10 years for the personal use enhancement. The court imposed similar terms of imprisonment as to count II but stayed them under section 654. The court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)) and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45). The court also awarded appellant 138 days of custody credits.
On May 14, 2002, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
At 3:00 a.m. on November 22, 2000, Jason Shelly drove a cargo truck and trailer out of the Merced inventory yard of McLane-Pacific, a grocery store distributor. The trailer was loaded with candy and 2,248 cartons of cigarettes bearing a McLane-Pacific stamp. When Shelly stopped the rig at a railroad track, a man entered the cab through an unlocked passenger door and pointed a gun at Shellys head. The assailant was a Hispanic male dressed in jeans and a dark sweater with a hood pulled over his head. The light in the cab was on and Shelly could see the gunmans face.
A second Hispanic male, also wearing a dark hood with jeans, climbed into the truck cab behind the appellant. Appellant told Shelly he wanted the "fucking truck." Shelly consented and tried to leave but appellant told him to drive. Appellant climbed into the "cabover" and continued to hold the gun to the back of Shellys head. The other man sat in the passenger seat of the truck and directed Shelly to drive into a nearby orchard. Shelly told the men they had they had the wrong truck and begged them not to commandeer the vehicle. The man in the passenger seat told him to shut up or he would kill him. Shelly drove into an orchard and stopped beyond a parked U-Haul truck.
The second man got out of the truck and opened Shellys door. Appellant pushed the gun against Shelly and forced him out of the cab. Shelly followed the second man into the orchard. When the man stopped and ordered Shelly to turn around, he complied and came "face-to-face" with appellant for several minutes. Shelly and appellant stared at one another from a distance of two feet while appellant pointed the gun at Shelly. Shelly continued to stare at appellant as the other man tied his hands behind his head. The other man then pulled Shellys T-shirt over his head so Shelly could not see. Appellant told Shelly to lie down and the latter complied. Although the two men referred to each other as "[B]ro," Shelly could differentiate between appellants voice and that of the other man.
In the meantime, a third person backed the U-Haul up to Shellys truck and opened the doors. Shelly heard someone running back and forth between the trucks. As he lay on the ground, Shelly lifted his leg to get into a more comfortable position. Appellant told him if he moved again, he would "blow [his] fucking brains out." Shelly eventually heard the trailer close and the U-Haul drive away. Shelly called out about five seconds later but received no response. He then pulled his shirt off of his face, ran to a nearby house, and encountered Herminio Oseguera. Shelly told Oseguera he had just been hijacked and needed to call 911. Oseguera called law enforcement officials.
Merced County Deputy Sheriff Todd Miller arrived at approximately 3:40 a.m. and contacted Shelly, whose hands were still bound. Shelly accompanied Miller back to the orchard where his truck was still parked. The orchard was wet and muddy and there was a clear print on the ground where Shelly had been forced to lay down. Members of the crime scene response team made a cast of a footprint found in the area of the truck. Duane Lovaas, senior criminalist with the California Department of Justice regional crime laboratory in Ripon, later tested the footprint cast. He concluded the footprint was consistent with the shoes appellant was wearing at the time he was taken into custody. However, no one could say with certainty that appellants shoe actually made the print.
Merced Police Corporal Matthew Williams learned about the carjacking and began patrolling the area for the U-Haul truck. When the police stopped the truck, appellant exited from the passenger seat while another man, David Addington, exited from the drivers seat. Addington had rented the U-Haul truck on November 21, 2000, at approximately 5:46 p.m. Two Marlboro cigarette cartons and two cigarette packs, one Marlboro and the other Basic Menthol, were found in the cab of the U-Haul. Officers found a walkie-talkie underneath the drivers seat. Williams found several pallets of cigarettes in the cargo area of the U-Haul. These cigarettes bore a McLane-Pacific label. When Williams asked whether the pair had disposed of a gun, appellant said there was no gun on the road. However, appellant confirmed that Addington had thrown some cigarettes out the window.
Merced Police Officer Joseph Dunagan transported Shelly to the U-Haul at approximately 3:45 a.m. for an in-field showup. Dunagan could see the door to the cargo area was open but could not see what was inside. Shelly told Dunagan that two young Hispanic males had carjacked him. Shelly initially said he had gotten a "real good look at the first guy getting in the cab with the gun." He then clarified his statement, acknowledged the gunman wore a hood, but said his face was nevertheless visible. Dunagan told Shelly he was going to be shown individuals but these individuals were not necessarily involved in the carjacking. Dunagan further explained that Shelly should only identify an individual if he was sure he was guilty.
Upon reaching the scene, Dunagan began to slow his car until it was approximately two lengths behind the U-Haul. Dunagan also activated the patrol cars overhead lights so the scene was completely illuminated. Shelly had an unobstructed view of appellant and Addington. Even before Dunagan completely stopped the patrol car, Shelly identified appellant as the gunman. At trial, Shelly testified appellant was a little thinner and his hair was a little longer then it had been in November 2000. Although Dunagan could not see a hood on appellants sweatshirt, Shelly said appellant was wearing one. Dunagan confirmed this assertion when appellant turned to the side. Shelly said he had never seen Addington, who appeared to be Caucasian. Shelly said Addington was similar to the gun-toting carjacker, but noted the other carjacker was Hispanic.
On the day of the carjacking, officers showed Shelly two photo lineups. Neither of these lineups included appellants picture. In one photo lineup, Shelly saw a picture of someone who looked like the second carjacker. However, he did not positively identify anyone in either lineup. During interviews with law enforcement officers, appellant repeatedly called the officers "Bro." When asked if he had an alibi, appellant said, "[N]o," and told the officers to "[a]sk the white dude."
The parties stipulated that appellant smokes Marlboro Reds cigarettes and that such cigarettes have brown filters.
Defense
Merced Patrol Officer Allen Adrian testified that appellants clothes were placed in evidence bags when he was booked. Although the property tags read "3:40 a.m.," Adrian actually obtained the clothes at 10:40 a.m. The earlier hour referred to the "time of the case."
Merced Community Services Officer Donnalee Hartman denied taking appellants shoes and imprinting them into the ground. She also said a new policy requires that evidence be marked with the time of booking rather than with the time the case began.
Appellants brother, Miguel Flores, testified a photo lineup shown to him did not include his picture. Although appellant resembled Miguel, Shelly was positive that appellant robbed him. Shelly said he is half-Hispanic, has been around Hispanic people all his life, and immediately recognized that appellant was Hispanic. Shelly also said he was five feet away from appellant in the orchard and that he heard the two men call each other "Bro." Shelly did not notice whether the back door of the U-Haul truck was open during the field showup. That was because he was focused on appellant. Shelly denied providing David Addington with documents relating to his cargo.
Dr. Robert W. Shomer, a forensic psychologist and an expert on eyewitness testimony, testified at length about the unreliability of eyewitness identification. Shomer stated that stranger identifications are unreliable and that there is no relationship between a witnesss confidence and the accuracy of an identification. Shomer explained that short observation time, stress, and focusing on other objects for survival will reduce the reliability of an eyewitness identification. Shomer also testified that DNA has often proven eyewitness identifications wrong. Dr. Shomer said the Department of Justice issued new guidelines for eyewitness identification in 1999. Those guidelines advise law enforcement agencies to create procedures to increase reliability. Shomer suggested that victims are suggestible when identifying a suspect at a crime scene shortly after the crime occurs. If a persons face is fully or partially covered, this tends to reduce the reliability of an identification. Moreover, if a suspect is associated with something else, this continued association suggests to the victim that the suspect committed the crime.
Responding to a hypothetical question, Shomer said Shellys identification could have been impaired because it involved a life-threatening situation, a gun, two suspects, a dark and foggy night, and suspects who wore hoods. Shomer also stated the field showup was suggestive because of the presence of the open U-Haul truck and the cigarettes. Shomer suggested a suspects use of the word "Bro" was not relevant in linking him to the carjacking if such a word was part of the suspects subculture. Dr. Shomer concluded that eyewitness identification of strangers is usually wrong. However, he conceded that some crime victims can accurately identify their assailants.
DISCUSSION
A. Due Process
Appellant contends the trial courts denial of his motion for a live lineup amounted to a denial of due process of law. Respondent argues the contrary.
A "lineup" is a relatively formalized procedure wherein a suspect, who is generally already in custody, is placed among a group of other persons whose general appearance resembles the suspect. The result is essentially a test of the reliability of the victims identification. An in-field showup, on the other hand, is generally an informal confrontation involving only the police, the victim, and the suspect. One of its principal functions is a prompt determination of whether the correct person has been apprehended. A showup is not the equivalent of a lineup. The two procedures serve different, though related functions and involve different considerations for all concerned. (People v. Rodriguez (1987) 196 Cal.App.3d 1041, 1049.)
The United States Supreme Court has described the right of a defendant in a criminal trial to due process as the right to a fair opportunity to defend against the States accusations. The spirit and the purpose of the right to due process under the California Constitution is to assure everyone a full and ample opportunity to be heard before he or she can be deprived of liberty or property. (People v. Hansel (1992) 1 Cal.4th 1211, 1219.) In Evans v. Superior Court (1974) 11 Cal.3d 617, 625, the Supreme Court concluded that due process requires in an appropriate case that an accused, upon timely request therefor, be afforded a pretrial lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises only when (a) the eyewitness identification is shown to be a material issue and (b) there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve. (People v. Farnam (2002) 28 Cal.4th 107, 183.)
The questions whether eyewitness identification is a material issue and whether fundamental fairness requires a lineup in a particular case are inquiries which necessarily rest for determination within the broad discretion of the magistrate or trial judge. The accused may not, on demand, compel the People to arrange for a pretrial lineup in every case where there has not been such a lineup. Rather, as in all due process determinations, the resolution here to be made is one which must be arrived at after consideration of the benefits to be derived by the accused, reasonableness of his or her request, and the burden to be imposed on the prosecution, police, the court, and the witnesses. The broad discretion vested in a trial judge or magistrate includes the right and responsibility on fairness considerations to deny a motion for a lineup when that motion is not made timely. Such motion should normally be made as soon after arrest or arraignment as practicable. Motions not made until shortly before trial should, unless good cause is clearly demonstrated, be denied in most instances by reason of such delay. Dilatory or obstructive tactics made under the guise of seeking discovery but which tend to defeat the ends of justice will necessarily be weighed heavily on timeliness grounds against the granting of the motion within discretionary limits. (Evans v. Superior Court, supra, 11 Cal.3d at pp. 625-626.)
In the instant case, appellant was arrested on November 22, 2000, and his preliminary hearing was held on April 24, 2001. He was arraigned on May 8, 2001, and did not move for a pretrial lineup until November 15, 2001, a date almost a year after his arrest and more than 200 days after his preliminary hearing. Appellant did not offer any justification or good cause for this delay and the trial court properly denied his motion as untimely under the authority of Evans. The value of a pretrial lineup is substantially diminished once a preliminary examination has been conducted and a direct confrontation between a defendant and his accusers has occurred. (People v. Baines (1981) 30 Cal.3d 143, 148.) Given appellants substantial delay in requesting a lineup and the diminished value of such a lineup after the preliminary examination, the trial court properly denied appellants motion for a lineup shortly before the start of trial.
B. Ineffective Assistance of Counsel
Appellant contends his trial attorneys representation was ineffective because he failed to move for exclusion of the eyewitness identification evidence.[]
We initially note the State Bar of California suspended appellants trial counsel, Juan Falcon, from the active practice of law for 60 days effective August 20, 2003, for "failing to perform legal services competently, failing to communicate, failing to refund an unearned fee and failing to provide an accounting of client funds." These failures arose from Falcons conduct in a number of separate civil matters. (Disciplinary Actions, S.F. Daily J. (Sep. 29, 2003) p. 9.)
A defendant claiming ineffective assistance of counsel under the federal or state Constitutions must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Ochoa (1998) 19 Cal.4th 353, 414.) Prejudice exists when there is a probability that, but for counsels failings, the result would have been more favorable to the appellant. A reasonable probability is one sufficient to undermine confidence in the outcome. (In re Neely (1993) 6 Cal.4th 901, 908-909.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation. (People v. Hart (1999) 20 Cal.4th 546, 623-624.)
An appellant bears the burden of proving ineffective assistance of trial counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In demonstrating prejudice, an appellant must establish that as a result of counsels failures the trial was unreliable or fundamentally unfair. The benchmark for judging any claim of ineffectiveness must be whether counsels conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. (In re Visciotti (1996) 14 Cal.4th 325, 352.) As the United States Supreme Court has observed, the prejudice component of ineffective assistance focuses on the question whether counsels deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (Lockhart v. Fretwell (1993) 506 U.S. 364, 372.) A reviewing court will find prejudice when a defendant demonstrates a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Gurule (2002) 28 Cal.4th 557, 611.)
A criminal defendant bears the burden of showing an unreliable identification procedure. The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as (a) the opportunity of the witness to view the criminal at the time of the crime; (b) the witnesss degree of attention; (c) the accuracy of his prior description of the criminal; (d) the level of certainty demonstrated at the confrontation; and (e) the time between the crime and the confrontation. Only if the answer to the first question is "yes" and the answer to the second question is "no" is the identification constitutionally unreliable. If a reviewing court finds a challenged procedure is not impermissibly suggestive, its inquiry into the due process claim ends. The standard of review for a claim of undue suggestiveness is unsettled. However, a single-person showup is not inherently unfair. For a witness identification procedure to violate the due process clauses, the state must—at the threshold—improperly suggest something to the witness, i.e., wittingly or unwittingly initiate an unduly suggestive procedure. Due process does not forbid the state to provide useful further information in response to a witnesss request. A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police. (People v. Ochoa, supra, 19 Cal.4th at pp. 412-413.)
In the instant case, law enforcement officers showed Shelly two men in the field showup—appellant and Addington. Officer Dunagan told Shelly the individuals might not have been involved in the carjacking. He further instructed Shelly to identify an individual only if he was sure he was the assailant. Shelly testified he did not see the door into the cargo area of the truck or the cigarettes inside the truck. Shelly identified appellant as the gunman even before Dunagans patrol vehicle came to a complete stop at the site of the U-Haul truck. Shelly had ample opportunity to look at appellants face during the course of the abduction. He "purposefully" looked at the gunmans face while they were in the truck and he had no problem seeing appellants face. In the orchard, Shelly turned and was "face-to-face" with appellant for two to three minutes. They stared at one another from a distance of two feet while appellant pointed a gun at Shelly. Shelly continued to stare at appellant as the other man tied his hands behind his head. Less than an hour after the carjacking, law enforcement officers stopped Addington and appellant in the U-Haul truck. The truck contained items stolen from Shellys truck. Shelly immediately identified appellant as the gunman.
In view of all these facts and circumstances, trial counsel did not render ineffective assistance by declining to move for exclusion of the eyewitness identification evidence on the ground of unreliability. As Presiding Justice Gardner noted almost a quarter-century ago:
". . . An attorney represents the best interests of his client. He is not retained to make motions which simply clutter up the record with no benefit to his individual client. . . . An attorney must marshal and conserve his talents and time in such a way that his client will have the benefit of his best professional services. If a motion . . . is called for, fine. If not, there is no obligation on the part of any attorney to embark on a program of fruitless, time-consuming, nonproductive motions which . . . may make a dandy record but be of little or no value to his client." (In re Lower (1979) 100 Cal.App.3d 144, 149, fn. 3.)
Here, trial counsel reasonably elected not to challenge the forceful identification of the victim via a motion to exclude. Instead, he called Dr. Robert W. Shomer, a forensic psychologist and an expert on eyewitness testimony, to testify during the defense case. Dr. Shomer spoke at length and in great detail about the unreliability of eyewitness identification and concluded that eyewitness identification of strangers is usually wrong. Counsels reasonable tactical choices in preparing and presenting the defense case did not amount to ineffective assistance.
C. Cruel And Unusual Punishment
Appellant contends:
"Although the jury found appellant guilty of kidnapping to effect a jacking and robbery and personal use of a firearm in connection therewith, there are disturbing problems with the evidence in this case, especially the fact that the field-show up procedure at which appellant was identified as a suspect was extremely suggestive, resulting in an in-court identification evidence which was therefore extremely unreliable. In other words, there is definitely a strong possibility that the victim incorrectly identified appellant and the jury incorrectly convicted him. Yet the court had no choice under the statutory scheme but to sentence this first time convicted offender to life in prison. No one was physically injured and the trucking company reclaimed both its truck and its cargo within 24 hours. The only evidence of gun use was the testimony of the victim. No gun was ever found. No shots were ever fired. Nor was the gun used as a blunt force weapon. A statutory scheme that permits of no sentencing discretion violates the state and federal constitutional prohibition against cruel and unusual punishment in a case, where both the offense and the offender require something less draconian that a life sentence plus ten years."
The Eighth Amendment to the United States Constitution states:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Article I, section 17 of the California Constitution states:
"Cruel or unusual punishment may not be inflicted or excessive fines imposed."
In Ewing v. California (2003) 538 U.S. 11, the United States Supreme Court held a sentence of 25 years to life in prison, imposed upon an ex-felon for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and does not violate the Eighth Amendments prohibition on cruel and unusual punishments.
California courts construe the state constitutional guarantee against cruel and unusual punishment separately from its federal counterpart. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135-1136.)[] A criminal defendant must overcome a considerable burden in challenging a penalty as cruel or unusual. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1662.) Moreover, such challenges are rarely successful. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) In People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1433, review denied October 2, 2002, Division Two of the Court of Appeal, Fourth Appellate District held an ex-felons sentence of 25 years to life, under the three strikes law, for stealing a magazine did not constitute cruel and unusual punishment in violation of the California Constitution. Relying upon People v. Dillon (1983) 34 Cal.3d 441, 477-478, the Romero court stated in relevant part:
As a general matter, the punishment imposed by Californias three strikes law is not so disproportionate that it violates the prohibition against cruel or unusual punishment. (People v. Cluff (2001) 87 Cal.App.4th 991, 997.)
"`In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. [Citations.] First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendants involvement, and the consequences of defendants acts. A look at the nature of the offender includes an inquiry into whether "the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." [Citation.] Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions. (People v. Thongvilay (1998) 62 Cal.App.4th 71, 87-88.) [¶]...[¶]
"`[D]efendants punishment was imposed because of his recidivism. (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.)
`[S]ociety is warranted in imposing increasingly severe penalties on those who repeatedly commit felonies. If increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time. [Citation.] (People v. Martinez (1999) 71 Cal.App.4th 1502, 1515. . . . [& para;]...[¶]
"The second prong of the . . . analysis involves a comparison of the `challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. (People v. Thongvilay, supra, 62 Cal.App.4th at p. 88.) . . . `However, as the court pointed out in People v. Ayon (1996) 46 Cal.App.4th 385, 400, this step is inapposite to three strikes sentencing because it is a defendants "recidivism in combination with current crimes that places him under the three strikes law. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendants] punishment for his `offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons." [Citation.] (People v. Cline, supra, 60 Cal.App.4th 1327, 1338.)
"As for the third prong, defendants interjurisdictional comparison demonstrates that Californias Three Strikes law is among the most severe recidivist schemes in the nation. `That Californias punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require "conforming our Penal Code to the `majority rule or the least common denominator of penalties nationwide." [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct. (People v. Martinez, supra, 71 Cal.App.4th at p. 1516.)
"Defendants sentence of 25 years to life, under Californias recidivist statute, for felony petty theft does not constitute cruel or unusual punishment." (People v. Romero, supra, 99 Cal.App.4th at pp. 1431-1433.)
The Dillon court made it clear that its holding was premised on the unique facts of that case. Since the determination of the applicability of Dillon in a particular case is fact specific, the issue must be raised in the trial court. Where the matter of cruel and unusual punishment is not raised below, it is therefore waived on appeal. (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) In the instant case, defense counsel did not specifically raise the issue of cruel and unusual punishment. Rather, counsel noted the Court had the option of granting probation or granting a life term and urged the court to "show an extraordinary remedy and grant Mr. Flores probation." He specifically urged, "I believe he should be given an opportunity to attempt to complete probation given his youth, the fact that he had no criminal history." Since appellants trial counsel did not raise the issue of cruel and unusual punishment in the superior court, the matter must be deemed waived on appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J. and LEVY, J.