Opinion
C080363
03-20-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO CRUZ RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F00826)
Defendant Francisco Cruz Ramirez had sex with his friend's wife, the victim, while she was unconscious. Charged with both rape of an intoxicated person (Count 1) and rape of an unconscious person (Count 2), a jury acquitted him of the first count and was unable to reach a unanimous verdict with respect to the second count, resulting in a mistrial as to that count. Upon retrial, the defendant was convicted by jury of Count 2 and sentenced to serve six years in state prison.
On appeal, defendant contends: (1) principles of former jeopardy require reversal of his conviction because the acquittal in the first trial barred a retrial not only of the Count 1 offense of rape of an intoxicated person, but also of the Count 2 offense of rape of an unconscious person; (2) the trial court prejudicially abused its discretion and violated defendant's federal constitutional rights by excluding evidence the victim had methamphetamine in her system a day after the crime was committed; (3) the trial court also prejudicially abused its discretion and further violated his constitutional rights by admitting evidence of a threat made against the victim by a third party; and (4) the cumulative prejudicial effect of the foregoing assertions of error requires reversal.
We affirm. As our Supreme Court recently held, rape of an intoxicated person and rape of an unconscious person are separate offenses: "An act of rape 'may be committed with a person who is unconscious but not intoxicated, and also with a person who is intoxicated but not unconscious[;] neither offense is included in the other.' " (People v. White (2017) 2 Cal.5th 349, 357 (White), quoting People v. Gonzalez (2014) 60 Cal.4th 533, 539.) For this reason, the constitutional prohibition against being twice placed in jeopardy for the same offense did not bar retrial of Count 2. We also reject defendant's claims of evidentiary error. The trial court neither abused its discretion nor violated defendant's federal constitutional rights by excluding evidence of methamphetamine in the victim's system or admitting evidence of the threat made against her if she continued with the case against defendant. Having found no error, defendant's assertion of cumulative prejudice also fails.
FACTS
In November 2011, the victim and her husband lived together with their two daughters in an apartment. They attended a party and drank to excess. Around midnight, the victim was taken home by her cousin's husband; "she could barely walk." Apparently, the daughters had been taken home earlier in the night because one of them opened the door to let the victim into the apartment. The victim's husband was taken home by his uncle a short time after the victim arrived. The victim's cousin, R., came over shortly thereafter. She wanted to make sure the victim was home for the night and would not be going back out. When R. arrived, the victim and her husband were sitting on the couch in the living room and the husband was talking to his uncle, who was sitting in a chair. R. told the uncle to leave, which he did, and then helped the victim to bed because "she couldn't walk." After placing a blanket on the victim and taking her shoes off, R. stayed in the room and talked to her until she fell asleep. R. then left the apartment and told the husband to go to bed on her way out, which he did. The victim woke up briefly when the husband got into bed with her, but then fell asleep again. As the husband explained, she was "very asleep." When he tried to rouse her to get her to move over so he would have more room to lie down, she did not wake up and would not budge. The husband fell asleep shortly thereafter.
Defendant, who had also been at the party, came over to the apartment sometime later. Defendant and the victim's husband had been friends for many years, having grown up together in the same town in Mexico. One of the daughters woke the victim's husband up to tell him defendant was at the door. The husband told her to go back to bed and he went to the door to see what defendant wanted. Defendant asked whether the husband wanted to continue drinking. The husband was "already very drunk" and invited defendant inside. Defendant "didn't seem . . . too drunk." After having one or two beers with defendant, the husband fell asleep in the living room chair.
Defendant then went into the victim's bedroom and raped her. The victim testified she remembered waking up "confused" because she was having sex and did not know at first whether or not it was a dream. At some point, she realized there was an actual person on top of her. She knew it was not her husband, but could not see who it was, so she pushed him off of her and demanded: "Who are you?" and, "Where is my husband?" After the victim repeated the latter question twice more, defendant said that "he didn't know." The victim recognized his voice. He was sitting on the edge of the bed pulling his pants up when he said this. The victim fell asleep again. Defendant left the apartment with the victim's panties.
Sometime later, the victim woke up, felt wetness around her vaginal area, and noticed she was no longer wearing panties. She then went into the living room and woke up her husband, who was still asleep in the chair. She was crying when she told him what defendant had done. They debated what to do for a while. As the husband explained, "anger" and a sense of "manhood" made him want to take matters into his own hands, but ultimately they decided that would only make things worse. By then, it was the next morning. The victim and her husband took their daughters to stay with someone and drove to the police station to report the rape, but the station was closed. After driving around for awhile looking for a police officer, they went back to the apartment and called 911.
A sexual assault exam was conducted later that night. DNA was extracted from swabs taken from the victim's left breast, external genitalia, and cervix. Defendant's DNA profile was a match for that extracted from sperm found on the cervical swab. It also matched DNA extracted from the left breast swab. The victim denied ever having consensual sex with defendant.
Defendant testified in his own defense. He admitted having sex with the victim on the night in question, but claimed it was consensual. According to defendant's version of events, he came over to the apartment after the party, drank three or four beers with the victim's husband, and then left. He was going to head home, but ran into four or five friends who were drinking beer in the parking lot and decided to join them. After a few minutes, the victim came outside and told the group to come inside because they were being too loud. Defendant was the only one who did so. The victim's husband was already asleep in the living room. Defendant and the victim talked for a few minutes in the hallway and then began kissing. Eventually, they went into the bedroom where they started to have sex. During the act, defendant's phone rang and one of the victim's daughters suddenly appeared in the doorway, which caused them to end the act before defendant ejaculated.
During cross-examination, defendant admitted he had a phone conversation with the victim about a month after the incident, during which he claimed not to remember being in her bedroom that night, asked whether she was sure it was him, and challenged her claim with: "But if I touched you, you would have screamed." Defendant also admitted during cross-examination that he repeatedly denied having sex with the victim during a series of phone calls with a detective several months later. Eventually, after the detective told defendant that "having sex with someone leaves evidence" and he "already knew [defendant] had sex with her," defendant stated: "Well, if she's saying we had sex, if there's proof, then I suppose we did." He then claimed he did not remember entering the victim's bedroom and having sex with her in response to the detective's follow-up questions. At no point during either the pretext call or the calls with the detective did defendant claim to have had consensual sex with the victim
DISCUSSION
I
Former Jeopardy
Defendant contends principles of former jeopardy require reversal of his conviction because the acquittal in the first trial barred a retrial not only on the Count 1 offense of rape of an intoxicated person, but also on the Count 2 offense of rape of an unconscious person. He is mistaken.
As a preliminary matter, the Attorney General asserts defendant has forfeited this claim because he did not enter a plea of former jeopardy at the time of his retrial. "The general rule is that 'former jeopardy [must] be affirmatively pleaded, . . . or any claim on that ground is not preserved for review. [Citation.]' [Citations.]" (People v. Gurule (2002) 28 Cal.4th 557, 646.) Defendant argues the general rule does not apply in this case because he was acquitted in the first trial of "the same offense" for which he was convicted in the second trial, but cites no legal authority in support of this being an exception to the forfeiture rule. In a supplemental brief, assuming forfeiture, defendant argues his trial counsel rendered constitutionally deficient assistance by failing to plead former jeopardy as a defense. As our Supreme Court has explained, where such a plea has merit, defense counsel's failure to assert it would result in withdrawing a crucial defense from the case and amount to ineffective assistance of counsel. (People v. Belcher (1974) 11 Cal.3d 91, 96.) We must therefore determine whether or not such a plea in this case would have had merit.
Defendant does cite People v. Saunders (1993) 5 Cal.4th 580 for the proposition that a claim of former jeopardy may be raised for the first time on appeal. But that case merely held the defendant's failure to object to the discharge of the jury after it returned a guilty verdict as to certain charged crimes, but before the jury determined the truth of prior conviction allegations and before the defendant waived a jury trial as to those allegations, did not forfeit a claim that former jeopardy barred further proceedings as to those allegations. (Id. at pp. 585-586, 592.) This was a straightforward application of the general rule that a defendant has no obligation to object when a trial court proposes to discharge the jury "without legal necessity therefor." (Curry v. Superior Court (1970) 2 Cal.3d 707, 713; People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 77, fn. 20.) Here, as we explain below, the jury's deadlock as to Count 2 provided the legal necessity for discharging the jury as to that count. Saunders is therefore inapposite.
"The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15, of the California Constitution provide that a person may not be twice placed 'in jeopardy' for the 'same offense.' 'The double jeopardy bar protects against a second prosecution for the same offense following an acquittal or conviction, and also protects against multiple punishment for the same offense. [Citations.]' [Citation.] Although some differences in application arise, both federal and California law generally treat greater and lesser included offenses as the 'same offense' for purposes of double jeopardy. [Citations.]" (People v. Anderson (2009) 47 Cal.4th 92, 103-104.)
"However, when a trial produces neither an acquittal nor a conviction, retrial may be permitted if the trial ended 'without finally resolving the merits of the charges against the accused.' [Citation.] In general, if a jury is discharged without returning a verdict, the double jeopardy bar applies unless manifest necessity required the discharge or the defendant consented to it. [Citation.] From the time of the United States Supreme Court's decision in United States v. Perez (1824) 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165, it has been established that the failure of a jury to agree on a verdict is an instance of 'manifest necessity' permitting retrial of the defendant 'because "the ends of public justice would otherwise be defeated." ' [Citation.] California's application has long been the same. 'Like its federal counterpart, the state rule permits retrial following discharge of a jury that has been unable to agree on a verdict. [Citations.] The rule is codified in [Penal Code] sections 1140 and 1141, which permit retrial following discharge of a jury after the court has determined "there is no reasonable probability that the jury can agree." [Citations.] [Penal Code section] 1160 implements the legal necessity doctrine in the multiple count situation by permitting the trial court to receive a verdict on one count and to discharge the jury with respect to another count on which the jury deadlocked without jeopardy attaching as to that charge. [Citation.]' [Citation.]" (People v. Anderson, supra, at pp. 104-105.)
Here, in the first trial, the trial court received a verdict of acquittal as to Count 1 (rape of an intoxicated person) and discharged the jury with respect to Count 2 (rape of an unconscious person) for the manifest necessity of juror deadlock. Thus, jeopardy did not attach to the latter charge unless, as defendant argues in his appellate briefing, rape of an unconscious person is really "the same offense" as rape of an intoxicated person. However, in White, supra, 2 Cal.5th 349, our Supreme Court recently held rape of an intoxicated person and rape of an unconscious person are not the same offense: "An act of rape 'may be committed with a person who is unconscious but not intoxicated, and also with a person who is intoxicated but not unconscious[;] neither offense is included in the other.' " (Id. at p. 357, quoting People v. Gonzalez, supra, 60 Cal.4th at p. 539.) For this reason, the constitutional prohibition against being twice placed in jeopardy for the same offense did not bar retrial of Count 2. So too must we reject defendant's related argument Penal Code section 654 barred retrial of Count 2. Indeed, this argument is based on People v. Craig (1941) 17 Cal.2d 453, which was overruled in White.
Because a plea of former jeopardy would not have had merit, defendant's trial counsel did not provide constitutionally deficient assistance by failing to plead such a defense.
II
Exclusion of Evidence of Methamphetamine in the Victim's System
Defendant also claims the trial court prejudicially erred and violated his federal constitutional rights by excluding evidence the victim had methamphetamine in her system a day after the crime was committed. We disagree.
A.
Additional Background
The prosecution moved in limine to exclude evidence a urine sample obtained during the victim's sexual assault examination tested positive for both methamphetamine and amphetamine. The motion asserted the test results were irrelevant because the victim stated the only time she ingested methamphetamine was about one week before the night she was raped.
During an evidentiary hearing conducted pursuant to Evidence Code section 402, a criminalist testified the victim's urine sample contained both substances, but the quantity of each was not known. The criminalist explained methamphetamine metabolizes into amphetamine within the body, so it was "fairly common" to find both substances in a person's system following methamphetamine use. However, the most the criminalist could determine was that the victim had used the substance at some point, up to one week, prior to the time the sample was taken. If she had used a small amount of the drug on only one occasion, "a more realistic detection time window would be one to four days," depending on a number of factors such as "the pH of [her] urine." But if she had taken a larger amount of the drug, it would be possible for it to be detected up to one week later. The presence of these substances in a person's system, however, does not necessarily mean the person is under the influence of the drug. Generally, the effects of methamphetamine (e.g., poor impulse control, increased libido, and reduced fatigue or drowsiness) are felt between "four to eight, maybe up to 12 hours."
Undesignated statutory references are to the Evidence Code. --------
The prosecution argued the evidence was not relevant to impeach the victim's statement that she used the drug one week before the rape because the criminalist's testimony was consistent with that statement. The prosecution also argued the evidence should be excluded under section 352 because it would be unduly prejudicial to "just sort of dirty her up" with evidence of drug use that had such a "tenuous" connection to the crime and her credibility. The prosecution further argued presentation of the evidence would consume an undue amount of time and confuse the issues the jury was tasked with resolving. In response, defense counsel confirmed he wanted to ask the victim whether or not she used methamphetamine the day of the incident and anticipated the answer would be, "no, I used it about a week ago." He argued the evidence would be relevant to impeach that testimony because the criminalist stated it would be unlikely for a "one-time user" to have a positive test result one week after that use. Defense counsel also argued the evidence was "consistent with her possibly being under the influence" of methamphetamine at the time of the incident.
The trial court excluded the evidence under sections 350 and 352. The trial court first noted it agreed with the prosecution that the criminalist's testimony was not inconsistent with the victim's statement she used methamphetamine on one occasion about one week before the incident if she used a large amount of the substance on that occasion. The trial court explained: "There's not enough information that speaks to the specifics of how much she used, what she used, when she used it, and the time frame between discontinuation of the use and this particular incident, I think, to give the jury sufficient ability to weigh credibility on one hand or alternatively take into account the possibilities of a continuing effect or impact on the victim on the evening of this particular incident involving the defendant." With respect to the latter possibility, i.e., that the victim's methamphetamine use might have impaired her perception or influenced her behavior on the night of the incident, the trial court accurately summarized the criminalist's testimony as, "maybe it did, and maybe it didn't." The trial court continued: "But whether it did or whether it didn't is a function of a lot of different factors, none of which he has definitive information on, with which to provide an expert's opinion in terms of the ultimate impact of the drug on the victim . . . . [¶] . . . [¶] And if the expert is not in a position to make a definitive statement or calculation on the impacts, what is the jury supposed to do with it at that point? They are confused times a thousand in terms of the direction they are to take this information." The trial court also noted the potential for such drug use to call into question the victim's character in the eyes of the jury.
B.
Analysis
We review the trial court's determination as to the admissibility of evidence for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264.)
"No evidence is admissible except relevant evidence" (§ 350), and "[e]xcept as otherwise provided by statute, all relevant evidence is admissible" (§ 351). Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.)
One exception to the admissibility of relevant evidence is section 352, which provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." This section "permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption," but "requires that the danger of these evils substantially outweigh the probative value of the evidence. This balance is particularly delicate and critical where what is at stake is a criminal defendant's liberty." (People v. Lavergne (1971) 4 Cal.3d 735, 744.) Accordingly, "section 352 must bow to the due process right of a defendant to a fair trial and his [or her] right to present all relevant evidence of significant probative value to his [or her] defense. [Citations.] Of course, the proffered evidence must have more than slight relevancy to the issues presented. [Citation.]" (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599; People v. Reeder (1978) 82 Cal.App.3d 543, 553.)
Here, evidence the victim had an unquantified amount of methamphetamine and amphetamine in her urine on the day after the incident does not tend to prove or disprove any disputed fact of consequence to the jury's determination of defendant's guilt. As the trial court correctly observed, such evidence is not inconsistent with the victim's statement she used methamphetamine on one occasion one week before the incident, and therefore would not assist the jury in determining her credibility on that basis. Nor does the simple presence of these drugs in the victim's system, without more, tend to prove she was under the influence of methamphetamine on the night in question. While "it is proper to show, as affecting his [or her] capacity to observe, recollect, and communicate, that a witness was intoxicated at the time the events narrated occurred" (People v. Singh (1937) 19 Cal.App.2d 128, 129, italics added), evidence of mere "consumption" of drugs is admissible only "if there is expert testimony substantiating the effects of such use." (People v. Rocha (1971) 3 Cal.3d 893, 901.) As the trial court also correctly observed, the criminalist had no basis from which to conclude the victim was under the influence of methamphetamine at the time of the incident. She may have taken the drug up to one week before, as she claimed. And even if her use occurred within the four-day window the criminalist testified would be more likely if the amount she used was small, the effects of that use would have lasted no more than 12 hours. Thus, the criminalist could offer no opinion as to whether or not the victim was under the influence of methamphetamine on the night in question. For the same reason, this evidence was not relevant to the issue of her conduct during the incident. (People v. Kelly (1992) 1 Cal.4th 495, 523 ["evidence of substance abuse, without more, would be meaningless to a jury's consideration of the victim's conduct"].)
However, even assuming minimal relevance to these issues, the trial court was well within its discretion in determining such marginal probative value was substantially outweighed by the danger of undue prejudice and confusing the issues. Evidence of illegal drug use obviously reflects negatively upon a person's character. (See, e.g., People v. Valentine (1988) 207 Cal.App.3d 697, 704.) And for the same reasons we have concluded the evidence of the victim's use of methamphetamine up to one week before the incident would have been meaningless to the jury's assessment of her conduct and ability to perceive during that incident, the trial court was also right to conclude it would have confused their assessment of these issues.
Nor did exclusion of the evidence violate defendant's constitutional rights. A trial court's application of the ordinary rules of evidence does not impermissibly infringe on a defendant's constitutional rights to confront and cross-examine witnesses or to present a defense. (People v. Blacksher (2011) 52 Cal.4th 769, 821; People v. Robinson (2005) 37 Cal.4th 592, 626-627.)
The trial court neither abused its discretion nor violated defendant's constitutional rights by excluding evidence of methamphetamine in the victim's system at the time of her sexual assault examination.
III
Admission of Evidence of the Threat Against the Victim
We also reject defendant's assertion the trial court prejudicially erred and further violated his constitutional rights by admitting evidence of the threat made against the victim.
A.
Additional Background
Defendant moved in limine to exclude evidence the victim was threatened by a man she recognized from her hometown in Mexico, who told her he was defendant's uncle and said, "there would be consequences in her hometown unless she dropped the charges." The motion asserted this evidence was "irrelevant and highly prejudicial."
After entertaining argument on the motion, the trial court ruled the threat was relevant to the issue of the victim's credibility and admissible for that purpose whether or not the threat was linked to defendant. However, finding the connection between defendant and the man who delivered the threat to be "problematic," the trial court excluded under section 352 any evidence the victim believed the threat was delivered on defendant's behalf, noting, "that is extremely prejudicial, because a jury is going to take that as a consciousness of guilt that he's authoring these threats and having his friend or relative . . . delivering them to [the victim]"
During the victim's testimony, the prosecutor asked: "After reporting this crime to law enforcement, did someone come to your home and threaten you?" The victim answered: "Yes." The prosecutor followed up: "And were you familiar with this individual as being from your same hometown in Mexico?" The victim responded: "Yes, yes, just by sight." The prosecutor then asked: "And what did he tell you about whether to pursue this case or not?" The victim answered: "He told me -- he told us that if we continued with the case, there would be repercussions with my family back in my hometown."
After this testimony, the trial court immediately instructed the jury: "During the testimony of [the victim], you heard evidence that a threat was made against her and her family. Evidence of this threat is admitted solely for the purpose of the effect, if any, it had on the witness's testimony, and may be considered by you for the limited purpose of assisting in your evaluation of the witness's credibility and the weight to be given to her testimony. [¶] This evidence is not offered for its truth, and you may not consider it for any purpose other than as instructed in this admonition."
B.
Analysis
" '[E]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness's fear is likewise relevant to her [or his] credibility and is well within the discretion of the trial court. [Citations.]' [Citations.] Moreover, evidence of a 'third party' threat may bear on the credibility of the witness, whether or not the threat is directly linked to the defendant. [Citations.]" (People v. Mendoza (2011) 52 Cal.4th 1056, 1084.)
"Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat. It could come from a friend of the defendant, or it could come from a stranger who merely approves of the defendant's conduct or disapproves of the victim. . . . [¶] Regardless of its source, the jury would be entitled to evaluate the witness's testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of . . . section 352, those facts which would enable them to evaluate the witness's fear." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369.)
Defendant acknowledges the foregoing basis for admissibility, but argues it is inapplicable here because the victim was "unequivocal in her testimony . . . that [defendant] sexually assaulted her while she was sleeping" and "never stated that she was afraid to testify or afraid that there would be repercussions to herself or her family if she did testify at trial." However, he cites no legal authority for the proposition that a witness's testimony must be equivocal, or that she must affirmatively state she is afraid, before evidence of the threat may be introduced. Nor have we found any on our own. Instead, the authorities "make clear that a trial court has discretion, within the limits of . . . section 352, to permit the prosecution to introduce evidence supporting a witness's credibility on direct examination, particularly when the prosecution reasonably anticipates a defense attack on the credibility of that witness." (People v. Mendoza, supra, 52 Cal.4th at p. 1085.) Here, the victim's credibility was central to the prosecution's case against defendant and the defense sought to attack that credibility both through cross-examination and through defendant's testimony concerning her actions on the night in question. And while the victim did not specifically state the threat made her afraid to testify, we conclude the threat itself supports a reasonable inference of that fear.
Nor are we persuaded by defendant's characterization of the victim's testimony, specifically, that "the alleged incident of intimidation appeared to have no deterrent effect on her testimony in spite of the message it was meant to convey." While the victim never wavered in her account of defendant's actions, she did become so emotional during her testimony that the trial court called for a break in the proceedings because she was having "a difficult time emotionally," and following that break, called an early end to the day's proceedings because she "completely and emotionally broke down and broke into tears to a point where she was unable to continue forward." The trial court also stated for the record it was advised during the break that the victim "had a panic attack." We were obviously not present during the trial to observe the victim's demeanor ourselves and must defer to the trial court's description. This description is entirely consistent with a witness who was both emotional because she was being forced to recount the details of being raped and also fearful of testifying against defendant.
Finally, the trial court did not abuse its discretion in admitting the threat evidence under section 352 or thereby violate defendant's constitutional rights. For reasons already expressed, the evidence was highly probative of the victim's credibility. And contrary to the conclusory assertion in defendant's appellate briefing, this probative value was not "clearly outweighed by the potential for prejudice, undue consumption of time, and confusion it would create in the jury's mind." Indeed, defendant supplies no specific argument with respect to how these statutory counterweights substantially outweigh the probative value of the evidence. His assertion they do is therefore forfeited. (See People v. Earp (1999) 20 Cal.4th 826, 881.) For the same reason, we also consider forfeited defendant's equally conclusory assertion his "constitutional rights to a fair trial and due process were violated." (Ibid.)
Because the defense strategy was to challenge the victim's credibility, the trial court properly allowed the prosecution to support her credibility by eliciting testimony a third party threatened her with repercussions if she continued with the case against defendant.
IV
Cumulative Prejudice
Having rejected each of defendant's claims of error, his further assertion that the cumulative prejudicial effect of the errors requires reversal also fails. (See People v. Boyer (2006) 38 Cal.4th 412, 489.)
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
HULL, J.