Opinion
H046201
06-01-2020
THE PEOPLE, Plaintiff and Respondent, v. GUSTAVO ANTONIO CORTEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1452251)
Defendant Gustavo Antonio Cortez appeals from a judgment entered after a jury found him guilty of attempted murder (Pen. Code, §§ 664, subd. (a),187). The jury also found true the allegations that defendant personally discharged a firearm (Pen. Code, § 12022.53, subd. (c)) and committed the offense for the benefit of a criminal street gang (Pen. Code, former § 186.22, subd. (b)(1)(C)). The trial court sentenced defendant to 39 years in prison.
Subsequent references to Penal Code section 186.22 are to the version in effect when defendant committed his crime.
On appeal, defendant contends: (1) the trial court erred when it overruled a defense hearsay objection; and (2) defense counsel rendered ineffective assistance by failing to object to inadmissible hearsay evidence. The judgment is affirmed.
I. Statement of Facts
A. Prosecution Case
1. The Shooting
On August 17, 2014, at about 7:51 p.m., police officers responded to the report of a shooting at 450 East Eighth Street in Gilroy. As Officer Andrew Lopez approached the location, he heard an update that a black vehicle had left the scene. About five minutes later, he stopped a black vehicle, which was driven by Jacob Diaz. Diaz, who was wearing a red 49ers jersey, told Officer Lopez that someone had shot at him a couple of times. Diaz appeared to be in a state of shock. According to Diaz, he was driving on East Eighth Street when he saw a man "kind of put his hands up." Diaz believed that he knew the man and thought he needed a ride. Diaz turned around, exited his vehicle, approached the man, and realized that the man was not his friend. Diaz told Officer Lopez that the man asked him if he was a "chapete," and he replied, "No." As the man began shooting at him, Diaz turned and ran. He jumped over a fence and sustained abrasions to his arms. Diaz eventually jumped back over the fence, returned to his car, and left. Police officers found no weapons on Diaz, in the interior of the vehicle, nor in the trunk.
"Chapete" is a derogatory term that Surenos use towards Nortenos and is a sign of disrespect.
Jason Rivera testified that he told police officers at the scene that he and his girlfriend had just returned to their apartment in the complex at 450 East Eighth Street at about 7:30 p.m. Rivera saw "a Norteno dude," later identified as Diaz, who was wearing a red 49ers jersey and standing next to a black Nissan. This individual, whom Rivera had never seen before, asked if they knew someone who had a blue truck. Rivera responded that he lived in the back of the apartment complex. Rivera was referring to defendant, whom he had seen occasionally at the apartment complex during the previous eight years. As Rivera continued to walk to his apartment, defendant ran between the buildings at a full sprint, pulled out a small black revolver, and stopped at the mailboxes. Diaz and defendant were about six to seven feet apart when defendant held the revolver parallel to the ground, pointed towards Diaz, shot the gun, but did not hit him. Diaz was standing by the open trunk of his car just before the shooting. Diaz and defendant then ran through the back of the apartment complex. Rivera yelled at some children to go inside and called 911. While Rivera was calling 911, Diaz returned to his car and left. At the end of the 911 call, defendant's father confronted Rivera and told him that he "better watch [his] back," because the victim was one of Rivera's friends. Rivera never saw Diaz with a gun or knife. Rivera reported the shooting as gang-related because there was shooting and defendant hung around with Surenos.
The 911 call was played for the jury.
Marta Becerra, who also lived in the apartment complex, had just returned home when the shooting occurred. She heard "[m]aybe, like, five" gunshots and immediately went to get her daughter who was playing outside. When Becerra opened the door, she saw a car and a young Hispanic man wearing a red 49ers jersey. He had opened the trunk of his vehicle. The man then yelled, "fuck sur trece" twice before he pulled out a gun. Becerra went into her apartment. She later looked out and saw him leaving. She never saw defendant in the courtyard.
When the police first interviewed Becerra, she did not mention that the victim was wearing a 49ers jersey and pulled a gun out of the trunk.
Two days after the shooting, Officer Andrew Viale, who was aware of an arrest warrant for defendant, conducted a traffic stop. Defendant was a passenger in the vehicle and taken into custody. Defendant's cell phone included photos of, among other things, a black or dark blue revolver, defendant, his residence, and gang indicia. Jose Lopez, who was also a passenger in the vehicle, had a tattoo of three dots under his eye.
On the same day, Officer Lamonte Toney searched defendant's residence and took photos of the items that he found. These items included: a blue bandana; a tequila bottle with 1800 on it; a blue "LA" hat; Nike shoes with a blue swoosh; a blue shirt; a blue "New York" jersey; a blue Los Angeles jersey with the number 80 in blue; and other items of blue clothing. The Roman numeral XIII was etched into a dresser in defendant's bedroom.
2. Gang Evidence
a. Background
Detective Daniel Pineda, Officer Michael Bolton, and Officer Dawn Delfino testified as experts in criminal street gangs. On August 17, 2014, there were no fewer than 10 members of the Eighth Street Surenos. The primary activities of the Eighth Street Surenos include assault with a deadly weapon, armed robbery, attempted murder, murder, and illegal possession of a firearm. This gang is aligned with the Mexican Mafia prison gang and identifies with the color blue. It has common symbols: the numbers 13 and eight; the letter M; Eighth Street; an "8 ball"; Sur; the Roman numeral XIII; and a Mayan symbol that consists of two lines, each of which equals five, and three dots above those lines. The members of the Eighth Street Surenos also have hand signs in which they try to form the number eight as well as the numbers one and three.
The rivals of the Eighth Street Surenos are Nortenos, who identify with the color red. The common symbols for Nortenos are: the letter N; the number 14; and the Roman numeral XIV.
b. Predicate Offenses
Investigating officers testified as to the predicate offenses committed by members of the Eighth Street Surenos. Officer Martin Beltran testified that he was dispatched on September 30, 2008, to 590 Stoney Court in Gilroy, which was in Eighth Street Sureno territory. It had been reported that three individuals were smoking marijuana. When Officer Beltran arrived, he contacted Michael Alvarez, searched him, and found a loaded revolver in his waistband. Officer Beltran also testified that exhibit 18, which consisted of the certified records of Alvarez's conviction with a gang enhancement, were related to the incident in which he arrested Alvarez on September 30, 2008.
Officer Bolton testified that he heard over the radio that Officer Beltran had arrested Alvarez. Officer Bolton was assigned to be the gang investigator for the case. Officer Beltran gave Officer Bolton the revolver, which was found in Alvarez's possession. It was wrapped in a blue bandana. During his investigation, Officer Bolton noted that Alvarez had gang-related tattoos, including the number 13 and the Roman numerals XIII on his arm and knuckles. Alvarez also had the words "peligro on Eighth Street" tattooed on his chest. Officer Bolton opined that Alvarez was a member of the Eighth Street Surenos based on his tattoos, the blue bandana covering the firearm, and the certified records of his conviction.
Sergeant Chad Gallacinao testified that on May 9, 2009, he saw a group of four individuals who were hitting and kicking someone who was trying to flee. One of the men was holding what appeared to be a screwdriver or metallic object and began making a stabbing motion towards the victim. When he intervened, all four assailants fled. Sergeant Gallacinao eventually arrested one of the assailants, Riccardo Montoya. He noted that Montoya had tattoos of three dots near his eye and three dots on his hand.
Officer Geoff Guerin testified that he and Officer Douglas Remmick arrived to assist Sergeant Gallacinao, who was in the area of Monterey Road and Eighth Street. This location was in Eighth Street Sureno territory. Officer Guerin saw Pablo Montalvo walking down the street. Montalvo showed Officer Guerin that he had a small puncture wound on his shoulder. Montalvo was wearing a red 49ers hat, a red shirt, a red belt, and white shoes with red shoelaces.
Officer Remmick testified that he spoke to Julio Larios in connection with the assault. He observed that Larios had a tattoo on his neck of the "Aztec symbol, which one bar equals five and then the three dots; so five plus three, the eight Aztec symbol with ST, so Eighth Street, so that's showing his identification to the Eighth Street gang." Larios had three dots on his elbow and wrist and a paper with an Eighth Street drawing. He also signed a county jail form by writing X3 after his signature and told the officer that he "might as well go down for the cause . . . ." Based on his tattoos, the paper, and X3 after his signature, Officer Remmick opined that Larios was associated with the Eighth Street Surenos gang.
Sergeant Gallacinao, Officer Guerin, and Officer Remmick reviewed exhibit 21 and testified that it consisted of the certified records showing that Montoya and Larios were convicted of felony assault with gang enhancements in connection with the May 9, 2009 incident.
Officer Bolton testified that he was the lead investigator in connection with a murder on April 3, 2013. When he responded to the scene, both victims had already been transported to the hospital. There were 9mm shell casings on the ground. One of the victims died. Officer Bolton interviewed the other victim, who had the tattoo ESG on his back. ESG stands for East Side Gilas, which is a Norteno criminal street gang in Gilroy. As part of his investigation, Officer Bolton obtained surveillance footage from a nearby market. He presented Catrina Molina, who was an eyewitness to the shooting, with some photos from the surveillance footage. She identified one of the individuals as the individual who shot both victims. Officer Bolton eventually learned that this individual's name was Jose Cortes. Officer Bolton reviewed exhibit 20 and testified that it consisted of certified records showing that Cortes and Juan Guerra were convicted of murder and attempted murder with gang enhancements in connection with the April 3, 2013 shooting.
Officer Delfino testified that she assisted in the investigation of the gang allegations in connection with the April 2013 murder and attempted murder. She noted that Cortes's tattoos included three dots below his left eye, a G on the side of his head, and a large 13 on his back. Guerra also had tattoos: a large G on his head; an "8 ball" on his arm; and a large Aztec circle on his back. According to Officer Delfino, the victims were known Norteno gang members and one of the victims had tattoos of a Norteno subset gang. Officer Delfino opined that Cortes and Guerra were Eighth Street Sureno gang members based on their tattoos, their convictions for murder and attempted murder, and the involvement of rival gang members in the offenses.
c. Defendant's Gang Associations
Officer Robert Basuino testified that he contacted defendant at 450 East Eighth Street on September 28, 2009. A Hispanic male passenger in a passing vehicle had yelled at him "if he banged or do you bang." The man threw an unopened beer can at defendant, missed him, and drove away. Defendant told the officer that he was not a Sureno, but his friends were, and he associated with them.
Officer Toney testified that he conducted a vehicle stop and contacted defendant on March 24, 2012. They discussed, among other things, defendant's gang membership. Defendant admitted that he was an Eighth Street Sureno gang member and had been so for four years. Defendant also admitted that he frequented gang locations in Gilroy and was previously a gang registrant. Luis Escamilla, who had gang-related tattoos, was a passenger in defendant's vehicle.
Officer Delfino testified that she spoke with defendant on May 1, 2013, during her investigation of the case involving Cortes and Guerra. Defendant told her that he was not a Sureno gang member, that he used to hang out with Sureno gang members, and that he no longer did so. Defendant stated that he knew Cortes and Guerra and knew that they were Sureno gang members. Officer Delfino showed defendant photos from the surveillance footage from the grocery store. The first photo was of Cortes wearing a white shirt with a blue N, which was disrespectful of Nortenos. The person behind him was defendant, who was wearing a jersey with the number 18. Officer Delfino explained that the number 18 was significant, because it has the number eight in it and 18th Street is a Sureno gang in Southern California. The next photo showed defendant with other Sureno gang members. The officer opined, "Together, it looks like they're representing Surenos."
Detective Pineda opined that defendant was an Eighth Street Sureno gang member based on his association and contacts with gang members, his admissions, and the facts of the present case. He noted that defendant had several gang-related tattoos, including "Queto mentality," a Spanish term for gun, on his head, and " 'East Side' " on his calf, which also supported his opinion. Detective Pineda reviewed the photographs of items retrieved from defendant's home and his phone and explained how they were significant in reaching his opinion. When presented with a hypothetical based on the facts of this case, Detective Pineda opined that the crime was committed for the benefit of the gang.
B. Defense Case
Gregorio Cortez, defendant's father, testified that on August 17, 2014, he was at the corner of the parking lot at 450 East Eighth Street when a black car approached. There were two people inside the vehicle. Gregorio Cortez heard a noise "like when the car backfires or something like that, but at a distance." Defendant came outside only after the police had arrived.
Larissa Cortez, defendant's sister, testified that she was in the laundry of the apartment complex when she heard a loud noise and went outside. She saw Diaz, who was wearing a 49ers jersey, run towards his car and leave at a high rate of speed. No one was chasing him. She was not sure if she heard fireworks or a gunshot. She did not see defendant in the area. While she and her sister were talking with the police, defendant and her father came out of the house. Rivera was standing on his porch after the shots were fired. He was wearing a 49ers jersey, went inside, changed into a white T-shirt, and came back outside.
Daisy Cortez, defendant's sister, testified that when she returned home at about 6:00 p.m., she went to look for her sister, Larissa, who was doing laundry. Larissa told her, "Look over there; there's somebody running over there." Someone was running towards the parking area towards a black car. They went home and there were police outside. She did not see defendant in the area around the laundromat. Rivera was wearing a 49ers jersey, but later he was wearing a white T-shirt.
C. Rebuttal
When Officer Renee Arbizu spoke to Larissa Cortez, she did not mention that there was a person who had a 49ers jersey and changed clothes. She never mentioned Rivera during their conversation.
II. Discussion
A. Admissibility of Evidence
Defendant contends that the trial court erred by overruling defense counsel's hearsay objections to Sergeant Greg Flippo's testimony regarding his telephone conversation with Rivera. We disagree.
1. Background
a. Rivera's Testimony
After testifying regarding the details of the shooting, Rivera conceded that he did not want to be in court. On cross-examination, defense counsel asked him whether he had posted "fuk da police" on his Facebook account. Rivera admitted that he had done so. He explained that the police were giving his girlfriend a hard time and one of them told her that she needed to learn English. Defense counsel then sought to impeach Rivera by questioning him about his clothing indicating that he associated with Nortenos. Rivera also acknowledged that he could have been wearing a 49ers jersey earlier on the day of the shooting and explained that there was a game that day. He further testified that he changed his shirt just before the police arrived, because he did not want to get it dirty.
b. Sergeant Flippo's Testimony
Sergeant Flippo testified regarding a telephone call that he had with Rivera the day after the shooting. Rivera expressed his frustration to the sergeant. Rivera told him that since he had witnessed defendant shoot at the victim and defendant had not been arrested, he, his family, and the neighborhood were in danger.
Defense counsel objected to Sergeant Flippo's narrative of the telephone call on hearsay grounds. The prosecutor stated that it was a prior consistent statement, and the trial court overruled the objection. When Sergeant Flippo began to respond to the prosecutor's question as to further details provided by Rivera regarding defendant's conduct, defense counsel again objected on hearsay grounds. The prosecutor again stated that it was a prior consistent statement. The trial court overruled the objection.
Sergeant Flippo testified that Rivera told him that he saw defendant chasing another individual who was wearing a red 49ers jersey. When defendant ran by Rivera, Rivera saw that he was holding a firearm and that he started shooting at the victim. Rivera described the firearm as a small revolver. Following another hearsay objection that was overruled, Sergeant Flippo testified that Rivera also told him that he felt threatened by defendant's father, who was yelling at him while he was calling the police.
2. Analysis
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Hearsay evidence is inadmissible unless an exception applies. (Id. at subd. (b).)
"Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791." (Evid. Code, § 1236.) Evidence Code section 791 provides in relevant part: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: [¶] . . . [¶] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."
Here, the prosecutor introduced Rivera's 911 call. This call was admissible as a spontaneous declaration exception to the hearsay rule, since it was made before there was "time to contrive and misrepresent." (People v. Poggi (1988) 45 Cal.3d 306, 318.; Evid. Code, § 1240.) Rivera testified on direct regarding the shooting. During the cross-examination of Rivera, defense counsel established that Rivera had posted an anti-police statement on Facebook, could have been wearing a red 49ers jersey on the evening of the shooting, and had changed his shirt before the police arrived. He also elicited testimony from Rivera that he failed to provide details of the incident that were reported by Becerra, such as that the victim shouted a gang epithet before he removed a gun from his trunk. Thus, he attempted to show that after Rivera had the opportunity to reflect about the incident, he was motivated by bias in favor of Nortenos when he selectively provided information to law enforcement and when he testified regarding the details of the shooting. To rebut this inference of recent fabrication, the prosecutor was permitted to show that Rivera had consistently cooperated with law enforcement. Thus, Rivera's prior consistent statements to Sergeant Flippo after the shooting and before his testimony at trial became relevant and admissible.
Defendant also argues that much of Sergeant Flippo's testimony regarding his conversation with Rivera was neither consistent nor inconsistent with his testimony. He states that "[a] lot of it - like Rivera's expressed fears about [defendant] and his father - was entirely new and never arose during his testimony." First, defendant has failed to cite to the record to support this argument. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Second, we disagree with defendant's characterization of the record. Rivera had testified on direct that defendant's father had threatened him while he was calling 911.
In sum, the trial court properly overruled the hearsay objections to Sergeant Flippo's testimony.
B. Ineffective Assistance of Counsel
Defendant next contends that trial counsel rendered ineffective assistance when he failed to make meritorious objections to gang-related evidence and to Officer Michael McMahon's testimony.
" '[A] defendant claiming a violation of the federal constitutional right to effective assistance of counsel must satisfy a two-pronged showing: that counsel's performance was deficient, and that the defendant was prejudiced, that is, there is a reasonable probability the outcome would have been different were it not for the deficient performance.' [Citations.]" (People v. Woodruff (2018) 5 Cal.5th 697, 736 (Woodruff).)
1. Gang-Related Evidence
Defendant first argues that trial counsel's performance was deficient when he failed to object to inadmissible hearsay evidence on confrontation grounds.
The confrontation clause of the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford v. Washington (2004) 541 U.S. 36, 53-54, 59.) This bar applies only to testimonial statements. (Id. at p. 53.) The admission of nontestimonial statements, while subject to state law hearsay rules, does not violate the confrontation clause. (Ibid.)
In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), the California Supreme Court considered the manner in which gang experts can refer to hearsay in support of their opinions. The court held that "[t]he expert is generally not permitted . . . to supply case-specific facts about which he has no personal knowledge." (Id. at p. 676, italics added.) "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686, second italics added.) However, an expert may testify about "background information regarding his knowledge and expertise and premises generally accepted in his field." (Id. at p. 685.) "Since Sanchez, California appellate courts have held that expert testimony about 'the general attributes of the . . . gang, such as the gang's culture, the importance placed on reputation and guns, . . . the gang's rivals and claimed turf, the use of monikers and identifying symbols, and the like, [are] permissible as expert background testimony.' " (People v. Anthony (2019) 32 Cal.App.5th 1102, 1138.)
In order to prove the gang enhancement, the prosecutor must establish that a defendant committed his crime "for the benefit of, at the direction of, or in association with any criminal street gang." (Pen. Code, § 186.22, subd. (b)(1).) A group is a " 'criminal street gang' " only if its "members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (Pen. Code, § 186.22, subd. (f).) A " 'pattern of criminal gang activity' means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more" offenses enumerated in the statute. (Pen. Code, § 186.22, subd. (e).)
Here, the prosecutor presented the testimony of Officer Bolton, who was the investigating officer for the murder and attempted murder in April 2013. Officer Bolton showed surveillance footage to Molina, an eyewitness to the shooting, and she identified Cortes as the shooter.
Defendant contends that since the prosecutor did not produce Molina at trial for cross-examination and he never had the opportunity to cross-examine her, her testimony was inadmissible and thus trial counsel's performance was deficient when he failed to object to it. The Attorney General asserts that Officer Bolton mentioned Molina to show his familiarity with the case. He also contends that defendant has failed to show prejudice, because the predicate offenses were proven by the records of conviction and the testimony of the investigating officers.
Defendant contends, however, that trial counsel rendered ineffective assistance by failing to object to the admission of the records of conviction to prove the predicate offenses. Relying on Kirby v. United States (1899) 174 U.S. 47 (Kirby), he argues that this evidence also violated his rights under the confrontation clause.
In Kirby, the defendant was convicted of receiving stolen property. In order to prove that the property was stolen, the prosecution introduced records from a previous criminal case in which three individuals were convicted of stealing the goods that the defendant later received. (Kirby, supra, 174 U.S. at pp. 49-50, 53.) The Kirby court distinguished between the fact of the prior convictions, which "could only be established by a record" (id. at p. 54) and "the fact that the property was stolen," which was an element of the offense (id. at p. 55). Thus, the court held that the admission of the conviction records violated the defendant's right to confrontation under the Sixth Amendment and reversed the judgment. (Id. at p. 61.)
In contrast to Kirby, here, the records of prior convictions were offered to establish the fact of the convictions. (See Evid. Code, §§ 452.5, 1280; People v. Taulton (2005) 129 Cal.App.4th 1218, 1225 [records "prepared to document acts and events relating to convictions and imprisonments" are not testimonial].) The prosecutor introduced these records to prove the predicate offenses. Officers involved in the investigation of these offenses testified as to the circumstances of the offenses and the perpetrators' gang affiliation.
As to the first predicate offense, Alvarez's records establish that he had been convicted of illegal possession of a firearm with a gang enhancement. Officer Beltran, who had arrested Alvarez for this offense, testified that the offense was committed on September 30, 2008. Officer Bolton, who was the gang investigator for this case, also testified that Alvarez had tattoos indicating that he was an Eighth Street Sureno gang member. The second predicate offense was established in a similar manner. The records of Larios established that he had been convicted of felony assault with a gang enhancement. Sergeant Gallacinao testified that he had observed the assault on May 9, 2009, and arrested one of the assailants. Officer Remmick testified that he spoke to Larios during the investigation of this assault. He observed that Larios had a drawing and tattoos indicating that he was an Eighth Street Sureno gang member. Regarding the third predicate offense, the records establish that Cortes and Guerra were convicted of murder and attempted murder with gang enhancements. Officer Bolton testified that he was the lead investigator and responded to the scene very shortly after the offenses occurred on April 3, 2013. He also testified that the records of conviction related to the offenses that occurred on that date. Officer Delfino testified that she assisted in the investigation of the gang allegations in connection with these offenses. She observed the tattoos of Cortes and Guerra, which indicated that they were Eighth Street Sureno gang members.
Based on this record, defendant was not deprived of his Sixth Amendment rights by the admission of the records of conviction. Thus, assuming that trial counsel's performance was deficient when he failed to object to Officer Bolton's testimony regarding Molina's identification of Cortes, defendant has failed to show "a reasonable probability the outcome would have been different were it not for the deficient performance." (Woodruff, supra, 5 Cal.5th at p. 736.)
2. Officer McMahon's Testimony
Defendant also argues that trial counsel rendered ineffective assistance when he failed to object to Officer McMahon's testimony regarding Rivera's statements to him.
Officer McMahon testified that he interviewed Rivera two days after the shooting. The officer recounted Rivera's statements regarding the details of the shooting and the identification of defendant as the shooter. Trial counsel did not object to this testimony as hearsay.
As previously discussed in connection with Sergeant Flippo's testimony, Rivera's statements to Officer McMahon were admissible as prior consistent statements to show that Rivera had not fabricated evidence between the time of his 911 call and his testimony at trial. Accordingly, trial counsel's performance was not deficient.
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Premo, Acting P. J. /s/_________
Elia, J.