Opinion
F075688
03-15-2018
In re NATHAN O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. NATHAN O., Defendant and Appellant.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJD070019)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Robert Anthony Fultz, Judge. Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Smith, J.
-ooOoo-
Nathan O., age 14 at the time of the offenses, was adjudged a ward of the court (Welf. & Inst. Code, § 602) after he was found to have committed felony assault by means of force likely to produce great bodily injury, in the commission of which he personally inflicted great bodily injury (Pen. Code, §§ 245, subd. (a)(4), 12022.7, subd. (a); count 1) and misdemeanor battery on a school employee (§ 243.6; count 2). His maximum period of confinement was determined to be seven years four months. He was placed on probation on various terms and conditions, including a 365-day commitment to the Mid Term Program.
Further statutory references are to the Penal Code unless otherwise stated.
The petition was amended multiple times prior to adjudication.
On appeal, we hold: (1) Substantial evidence supports the section 12022.7, subdivision (a) enhancement; and (2) Nathan is not entitled to have stricken or modified the condition of probation requiring that he submit electronic devices under his control to warrantless searches. Accordingly, we affirm.
FACTS
I
PROSECUTION EVIDENCE
Gonzalo Meza was a special education teacher for Visalia Unified School District. On April 5, 2016, he taught seventh and eighth grade at River Bend school. Nathan, who had been Meza's student for approximately a year, had a diagnosis of emotional disturbance, which qualified him for special education services. Nathan had issues with anger and aggression.
Unspecified dates in the statement of facts are to the year 2016.
The incident involving Meza formed the basis for count 2.
On the morning of April 5, Nathan, who was being disruptive, was dismissed from the classroom to go to a specified study room. Although Nathan exited the classroom, he did not follow instructions to go to the study room. Instead, he walked throughout the school, being disruptive to other classes. When he continued to refuse to go into the study room as instructed, he was given a 15-second "countdown," a school protocol in which the student was given a 15- to 20-second countdown and told what would happen if he or she did not comply with instructions. During the countdown, Nathan was verbally aggressive. He was cussing and being defiant. When, at the end of the countdown, Nathan still refused to enter the study room, Meza and his instructional aide took hold of Nathan, per school district protocol, in order to prevent further escalation. Nathan resisted and, while being physically taken into the study room, threw approximately two closed-fist punches at Meza. One struck Meza in the shoulder. It left Meza sore, but did not injure him.
Nathan wanted to go to a different study room in which another student was already present.
Judah Tanner was a special education teacher at River Bend. On the morning of August 17, he was with his class when he heard some scuffling going on outside. He saw two staff members attempting to deescalate a fight, so he went out to help.
The incident involving Tanner formed the basis for count 1.
Tanner was outside for about 15 seconds when C.F. attacked him from the side. C.F. tackled Tanner and, while Tanner was on the ground, jumped on top of Tanner and started hitting him. Tanner eventually was able to push him off and get up. When C.F. continued to swing at him, Tanner grabbed his legs and took him to the ground. Tanner estimated C.F. swung at him at least 15 times. C.F. struck Tanner in the chest, head, and face.
Neither C.F. nor Nathan was involved in the initial fight.
While Tanner was on the ground, restraining C.F., Nathan jumped on Tanner's back. Nathan had his arm around Tanner's neck, although he was not choking Tanner. Nathan struck Tanner five to 10 times in the face and side of the head. Eventually, someone got Nathan off of Tanner's back.
Daniel Farmer, a program specialist for the Tulare County Office of Education alternative achievement program, had physically intervened in the original fight and had fallen to the ground with a student. As he stood back up, he saw Tanner on the ground. He saw Nathan hit Tanner in the forehead with his fist. That was the only strike he saw.
As a result of the incident, Tanner suffered welts on his chest and the back of his neck, a black eye, an abrasion below his eye, an abrasion on the top of his head, a bump on his head behind his ear, scrapes and bruising, three loose teeth (the two front ones and one next to them), and a very painful cheekbone. He sought medical attention at Immediate Care that afternoon, because the school wanted him to get checked out. The doctor was not concerned that there were any fractures, and Tanner received no stitches, X-rays, or bandages. Tanner returned to work the next day, but his teeth were loose and painful for a couple weeks. A dentist friend looked at them, but said to just keep an eye on them. They slowly tightened up on their own as the pain in Tanner's cheekbone subsided. Tanner did not need any dental surgery or dental care. As far as he knew, the teeth were fine after the couple of weeks it took them to tighten up.
II
DEFENSE EVIDENCE
On August 17, Visalia Police Officer Landin arrived at the school shortly after 10:00 a.m., in response to a call from a distraught secretary about some kind of altercation. She immediately saw Tanner with blood dripping down his face. Nathan, who was standing with staff down the hallway, was yelling and waving his arms in the air.
Nathan testified that on the morning of August 17, he and his friend C.F. were on break when a fight started. They ran over to watch it, and C.F. was "videoing" it. Four teachers, including Tanner and Farmer, ran out. Farmer pushed Nathan on the chest to make sure Nathan did not go toward the fight. Nathan swung at him. Farmer pushed Nathan, who fell. When Nathan got up, he went to help C.F. Nathan had seen Tanner pick C.F. up about five feet off the ground and slam him on the ground, causing C.F.'s face to bleed and C.F. to spit up blood. Tanner landed on top of C.F., and Nathan tried to tackle Tanner off C.F. from the side. Nathan wrapped his hands around Tanner's stomach to try to pull him off. Nathan hit Tanner, then a number of teachers came running toward him, and Farmer grabbed him by his pants and arms.
When Landin interviewed C.F., C.F. had a cell phone that contained a short video clip of the original fight. Landin saw no visible injuries or blood on C.F. She was not the first officer to contact him, however.
With respect to the earlier incident involving Meza, Nathan explained that he got mad because no one would help him with a math problem, so he slammed his book on the ground and walked outside. He did not want to go to the study room to which Meza directed him, because it was small. He tried to push Meza away, but did not make contact with him. Meza and a staff member forced him to go to another study room, then Nathan started kicking the door, because he did not want to be in there. Meza then started trying to make Nathan angrier.
DISCUSSION
I
SUFFICIENCY OF THE EVIDENCE
Nathan contends the juvenile court erred in finding the section 12022.7, subdivision (a) enhancement true, because, he says, Tanner did not suffer great bodily injury. We disagree.
In reaching our conclusion, we do not consider Nathan's diagnosed emotional and other special needs. While Nathan argues they must be considered mitigating factors, they are irrelevant to the quantum and severity of the injuries inflicted. To the extent Nathan's opening brief may be read to imply Tanner somehow was to blame for not more ably de-escalating the situation, we reject any such suggestion.
Subdivision (a) of section 12022.7 prescribes imposition of a three-year consecutive enhancement on "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony . . . ." Subdivision (f) of the statute defines " 'great bodily injury' " as "a significant or substantial physical injury."
"[T]he determination of great bodily injury is essentially a question of fact, not of law." (People v. Escobar (1992) 3 Cal.4th 740, 750.) " ' "If there is sufficient evidence to sustain the [trier of fact's] finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding." ' [Citation.]" (Ibid., fn. omitted.)
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). This standard of review applies to juvenile proceedings (In re Sylvester C. (2006) 137 Cal.App.4th 601, 605) and enhancements (People v. Wilson (2008) 44 Cal.4th 758, 806).
As previously summarized, the evidence showed Tanner suffered welts on his chest and the back of his neck, a black eye, an abrasion below his eye, an abrasion on the top of his head, a bump on his head behind his ear, scrapes and bruising, and three loose teeth. Although no bones were fractured and he did not need sutures or dental care, and he was able to return to work the next day, his cheekbone was very painful and his teeth were loose for a couple of weeks before tightening back up on their own. In part, Tanner testified: "I was at work the very next day, but pain-wise my teeth were loose for a couple weeks." A trier of fact reasonably could conclude Tanner was in pain for the period of time in which his teeth remained loose.
That C.F.'s conduct may have contributed to the injuries is immaterial under the circumstances of the incident (see People v. Modiri (2006) 39 Cal.4th 481, 485-486), and Nathan does not claim otherwise.
" 'A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.' " (People v. Escobar, supra, 3 Cal.4th at p. 752, quoting People v. Jaramillo (1979) 98 Cal.App.3d 830, 836.) Tanner was bloodied and bruised, and in pain for a couple of weeks. Although the juvenile court reasonably could have concluded these injuries were not significant or substantial, it was not unreasonable for that court to reach the opposite conclusion. (See, e.g., People v. Escobar, supra, 3 Cal.4th at p. 752 & cases cited; People v. Sanchez (1982) 131 Cal.App.3d 718, 727, 734; People v. Jaramillo, supra, 98 Cal.App.3d at p. 836.) Substantial evidence supported the court's true finding on the enhancement allegation.
Nathan relies, in part, in People v. Fuentes (1946) 74 Cal.App.2d 737, disapproved on another ground in People v. Yeats (1977) 66 Cal.App.3d 874, 879. The case does not assist him. The issue in Fuentes was whether the defendant could be convicted of assault by means of force likely to produce great bodily injury, or only of battery. The appellate court stated: "Under the facts of this case the measure of the likelihood of great bodily injury is the result produced by the [single] blow [to the jaw] and fall, for the likelihood of great bodily injury from the blow is demonstrated by the injury actually inflicted." (Fuentes, supra, 74 Cal.App.2d at p. 741.) The court concluded a single blow to the jaw sufficient to knock out the recipient was not ordinarily considered great bodily injury, nor could a single cut just over an inch long that was not severe enough to require suturing be so described. (Id. at pp. 741-742.) In contrast to Fuentes, Nathan did not limit himself to a single punch, and Tanner did not merely suffer a single small cut.
II
PROBATION CONDITION CONCERNING ELECTRONIC DEVICES
The probation officer recommended imposition of various terms and conditions of probation, including that "[t]he minor submit to a search of his/her person, residence, automobile and any object under his/her control, including any electronic devices, at any time, day or night, with or without a search warrant, with or without his/her consent, by any Peace Officer or Probation Officer." The court imposed the condition by referencing the written form that set out the various terms of probation. Nathan's counsel expressly waived reading of the terms and conditions, and raised no objection to the one now at issue.
Nathan now contends the electronic devices search condition is unconstitutionally overbroad and vague, and is invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent). We conclude Nathan has failed to preserve his Lent and overbreadth claims for appeal, and the condition is not unconstitutionally vague.
Questions concerning the propriety of the imposition of electronics search conditions are currently pending review before the state Supreme Court. (See, e.g., People v. Nachbar (2016) 3 Cal.App.5th 1122, review granted Dec. 14, 2016, S238210; In re J.E. (2016) 1 Cal.App.5th 795, review granted Oct. 12, 2016, S236628; In re Ricardo P. (2015) 241 Cal.App.4th 676 (Ricardo P.), review granted Feb. 17, 2016, S230923.)
In his opening brief, Nathan cites Ricardo P. as support for his argument the electronic devices search condition here is overbroad. Review was granted in Ricardo P. prior to the July 1, 2016, effective date of the amendment to California Rules of Court, rule 8.1115. While that rule now generally permits citation, for potentially persuasive value, to published opinions in which review has been granted (Cal. Rules of Court, rule 8.1115(e)), the practice and rule in effect before July 1, 2016, automatically depublished the decision under review (see Comment foll. Cal. Rules of Court, rule 8.1115). Accordingly, Ricardo P. is not citable as authority.
"The juvenile court has wide discretion to select appropriate conditions [of probation] and may impose ' "any reasonable condition that is 'fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.' " ' [Citations.]" (In re Sheena K. (2007) 40 Cal.4th 875, 889 (Sheena K.).) A condition of probation that would be unconstitutional or improper for an adult may be permissible for a minor. (Ibid.) "Juveniles are deemed to be more in need of guidance and supervision than adults, and their constitutional rights are more circumscribed. [Citation.] Further, when the state asserts jurisdiction over a minor, it stands in the shoes of the parents. A parent may curtail a child's exercise of constitutional rights because a parent's own constitutionally protected ' " 'liberty' " ' includes the right to ' " 'bring up children' " ' and to ' " 'direct the upbringing and education of children.' " ' [Citation.] Thus, the juvenile court may impose probation conditions that infringe on constitutional rights if the conditions are tailored to meet the needs of the minor. [Citation.]" (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033-1034.) In deciding what probation conditions are appropriate, the juvenile court considers both the circumstances of the offense(s) and the minor's entire social history. (In re Juan G. (2003) 112 Cal.App.4th 1, 7.)
Generally speaking, we review the juvenile court's imposition of a probation condition for abuse of discretion. Constitutional challenges to a probation condition are reviewed de novo, however. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
We turn first to Nathan's claim the electronics search condition is improper under Lent. Pursuant to that case, which applies to juvenile delinquency proceedings (see In re D.G. (2010) 187 Cal.App.4th 47, 52-53; In re Christopher M. (2005) 127 Cal.App.4th 684, 692, disapproved on another ground in People v. Gonzales (2013) 56 Cal.4th 353, 375, fn. 6), "[a] condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .' [Citation.]" (Lent, supra, 15 Cal.3d at p. 486, fn. omitted.) "This test is conjunctive — all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]" (People v. Olguin (2008) 45 Cal.4th 375, 379-380; accord, Lent, supra, 15 Cal.3d at p. 486.)
Failure to challenge the reasonableness of a probation condition on Lent grounds in the trial or juvenile court forfeits the issue for purposes of appeal. (People v. Welch (1993) 5 Cal.4th 228, 237; People v. Kim (2011) 193 Cal.App.4th 836, 841.) Because Nathan raised no objection to the electronics search condition, as he acknowledges, the issue was not preserved for appeal, and we decline to exercise our discretion to address it. (See In re Luis F. (2009) 177 Cal.App.4th 176, 183-184.)
Were we to address the issue, we would find the probation condition valid under Lent, as reasonably relating to future criminality, in light of the ample information before the juvenile court that Nathan was, or was in imminent danger of becoming, affiliated with a criminal street gang. The court expressed concern in that regard, and Nathan does not now challenge the conditions of probation requiring that he not be a member of a criminal street gang; not associate with any person he knows or reasonably should know to be a member of a gang or involved in the activities of a gang; not wear or display emblems or items reasonably known to him to be associated with or symbolic of gang membership; and not acquire any new tattoos or piercings known to him to be gang related.
Challenges to probation conditions on constitutional grounds may also be forfeited by failure to object in the trial/juvenile court. (Sheena K., supra, 40 Cal.4th at p. 887; see In re P.O. (2016) 246 Cal.App.4th 288, 297-298; People v. Kendrick (2014) 226 Cal.App.4th 769, 776-777.) The forfeiture rule does not apply, however, "when a probation condition is challenged as unconstitutionally vague or overbroad on its face and the claim can be resolved on appeal as a pure question of law without reference to the sentencing record. [Citation.]" (People v. Kim, supra, 193 Cal.App.4th at p. 842, citing Sheena K., supra, 40 Cal.4th at pp. 888-889.)
Not "all constitutional defects in conditions of probation may be raised for the first time on appeal, since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." [Citation.] In those circumstances, "[t]raditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." [Citation.]' [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 889.) "[G]enerally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction." (Ibid.)
We first examine Nathan's claim the electronics search condition was unconstitutionally vague. We conclude this claim presents a true facial challenge that was not forfeited by Nathan's failure to object to the probation condition below. While the claim was preserved for our review, however, we reject it.
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.]" (Sheena K., supra, 40 Cal.4th at p. 890.) "The vagueness doctrine bars enforcement of ' "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." [Citation.]' [Citation.]" (Ibid.) In the probation context, this means "[a] probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' . . . . [Citation.]" (Ibid.) A probation condition is not "unconstitutionally vague ' " 'if any reasonable and practical construction can be given to its language.' " ' [Citation.]" (People v. Hall (2017) 2 Cal.5th 494, 501.)
We believe the phrase used in the condition of probation at issue here — "any object under his/her control, including any electronic devices" — is, in this day and age, sufficiently precise to withstand Nathan's void-for-vagueness challenge. That there was no explicit search condition pertaining to electronic data does not, contrary to Nathan's argument, render the condition unconstitutionally vague.
Nathan cites us to In re I.V. (2017) 11 Cal.App.5th 249 (I.V.). In that case, Division 1 of the Fourth District Court of Appeal was faced with the question whether a probation condition requiring the minor to submit, to warrantless searches, "his 'person, property, or vehicle, and any property under [his] immediate custody or control,' " was unconstitutionally vague. The court found it was not, because, reasonably construed, the condition did not encompass searches of electronic data. (Id. at pp. 259-260.) The court observed that probation conditions authorizing searches of a probationer's person, property, and vehicle are routinely imposed, and that, in other proceedings, juvenile courts expressly imposed specific electronic and password conditions in addition to standard search provisions, where they intended to subject electronic data to search. (Id. at p. 261.) The appellate court found no indication the juvenile court intended to authorize searches of I.V.'s electronic data, and concluded: "In recent years, the digital revolution has effected a sea change in how people store and carry around their private information and communications. Given this reality, we conclude that it would not be reasonable to construe the standard property search condition, the origin of which precedes the digital era, to encompass searches of electronic data. If a court intends to authorize warrantless searches of a probationer's electronic data, the procedure is straightforward — the court must impose an explicit search condition pertaining to electronic data." (Id. at p. 262, fn. omitted.)
We do not believe that, fairly read, I.V. suggests a probation condition must explicitly use the phrase "electronic data" in order to pass constitutional muster. Here, the probation condition imposed on Nathan made it clear the search condition applied to electronic devices. This was sufficient.
To the extent the opinion can be so read, we disagree with it. --------
Nathan names a number of electronic devices and asks which, exactly, are subject to search under the challenged probation condition. Assuming the answer is, "All of them," this may make the probation condition overbroad, but it does not make it unconstitutionally vague.
Sheena K. illustrates the point. There, the California Supreme Court found unconstitutionally vague a probation condition that Sheena "not associate with anyone 'disapproved of by probation,' " because of the lack of an express requirement of knowledge. Without such an express requirement, the court reasoned, the probation condition did not notify Sheena in advance with whom she might not associate. (Sheena K., supra, 40 Cal.4th at pp. 890-892.)
Such a probation condition is manifestly different from one clarifying that a search condition extends to electronic devices under the probationer's control. The condition in Sheena K. covered encompassed association with a potentially infinite number of people, and left Sheena with no way to tell, from one person to the next, whether she was in violation of probation. By contrast, the electronics search condition in the present case covered a finite number of objects, and, if Nathan acquired a new electronic device, he knew — without any uncertainty — that device was subject to search.
We next turn to Nathan's claim the probation condition is overbroad. Although predicated on constitutional grounds, we conclude this claim was forfeited by Nathan's failure to object in the juvenile court. We reach this conclusion because Nathan is not raising a true facial challenge to the search condition. Rather, his claim, as advanced in his briefs, is one that cannot be resolved without reference to the record developed in the juvenile court. (See Sheena K., supra, 40 Cal.4th at p. 887; People v. Kendrick (2014) 226 Cal.App.4th 769, 777.)
A probation condition "is unconstitutionally overbroad . . . if it (1) 'impinge[s] on constitutional rights,' and (2) is not 'tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.' [Citations.] The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant's constitutional rights — bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement." (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)
"A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890.) Here, the purpose of the electronics search condition can only be ascertained by consulting the record developed in the juvenile court. Moreover, Nathan relies on the factual record to support his claim. (See People v. Kendrick, supra, 226 Cal.App.4th at pp. 777-778.) Indeed, the heading of the pertinent argument in his reply brief reads: "CONTRARY TO RESPONDENT'S CLAIM, THE PROBATION CONDITION ALLOWING FOR A WARRANTLESS SEARCH OF ELECTRONIC DEVICES IS UNCONSTITUTIONALLY OVERBROAD AND VAGUE AS IT WAS NOT SUPPORTED BY THE EVIDENCE AT TRIAL ." (Italics added.) Nathan's challenge manifestly does not present a pure question of law that can be resolved without reference to the record developed in the juvenile court. Accordingly, his failure to object in that court precludes consideration of the argument for the first time on appeal. (Sheena K., supra, 40 Cal.4th at pp. 885, 887-888.)
Sheena K. again is instructive. There, the nonassociation condition's overbreadth was readily apparent, without reference to the factual record, and it was easily corrected — again without reference to the factual record — by adding a knowledge requirement. Here, in contrast, whether the electronics search condition is overbroad and, if so, how it can be tailored to meet the purpose of the condition, depend on an examination of the factual record.
DISPOSITION
The judgment is affirmed.