Opinion
C050613
12-13-2006
THE PEOPLE, Plaintiff and Respondent, v. STEVEN GENE DANIEL, Defendant and Appellant.
Calaveras County Sheriffs deputies arrested defendant Steven Gene Daniel after three-and-one-half-year-old F.A. told her mother and grandmother that defendant, her mothers live-in boyfriend, had sexually molested her. At trial, the prosecutions evidence included out-of-court statements made by F.A. to her mother and grandmother and the investigators videotaped interview of the victim. F.A. also testified at trial.
A jury convicted defendant of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a) — count 1) and oral copulation on a child under the age of 14 and more than 10 years younger than defendant (Pen. Code, § 288a, subd. (c)(1) — count 2). The trial court sentenced defendant to three years in prison.
On appeal, defendant argues he is entitled to reversal because: (1) there is insufficient evidence to support his conviction; (2) the court erred in admitting F.A.s out-of-court statements; (3) the court abused its discretion in ruling three-year-old F.A. was competent to testify as a witness at trial; (4) CALJIC No. 2.20.1, the instruction on evaluating testimony of a child under 10 years of age, deprived defendant of his right to due process and trial by jury; and (5) cumulative errors deprived defendant of a fair trial. Defendant also contends the court abused its discretion in denying him probation. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecutions In Limine Motions:
The prosecution filed motions in limine asking the court to assess F.A.s competency to testify at trial, and to admit the videotape of the forensic interview of F.A. and F.A.s out-of-court statements to her mother and grandmother under Evidence Code section 1360.
Hereafter, undesignated statutory references are to the Evidence Code.
1. F.A.s Competency to Testify:
The court conducted a section 402 hearing to determine F.A.s competency as a witness. It asked F.A. her age, the names of friends and teachers, and her favorite color. The court then explored F.A.s understanding of the difference between the truth and a lie. F.A. promised the court she would tell the truth to the attorneys who questioned her.
Defense counsel expressed concern that, "it would be easy for her to get confused." Not wanting "to do that to her," he proposed an alternative to F.A. testifying at trial: "We have the complete videotape which I am not objecting to, she was asked almost all the questions . . . . [¶] . . . [¶] I dont know why we wouldnt just stipulate to have the video played rather than having . . . this young child put through . . . this."
The court rejected defense counsels suggestion, stating, "She is a very, very young child and of course, the Court is required to make an accommodation for young children and there is a jury instruction on how to — for the jurors to analyze their testimony. [¶] She does have the ability to make herself understood. And the court is satisfied that she appreciates her duty to tell the truth in this proceeding. [¶] So the court would find her competent."
2. The Forensic Interview of F.A.:
The parties stipulated that the videotape of investigator Rachelle Millers interview with F.A. be played in its entirety.
3. F.A.s Statement To Her Grandmother:
The court also conducted a section 402 hearing on the prosecutions motion to admit statements made by F.A. to her grandmother D.A. Among other things, D.A. testified that while she was babysitting F.A. on December 26, 2004, F.A. complained "she was having pain on her butt and then she pointed . . . to her female parts and she said her ta-ta was hurting." D.A. put F.A. in her bath and observed that area of F.A.s body was "very red." As F.A. was getting out of the bath, she told D.A. that defendant made her suck his "ta-ta." A few minutes later, F.A. said that, "nasty juice came out." D.A. believed the incident had occurred about two weeks before. Defense counsel argued D.A.s account of what F.A. said was unreliable and would "so mislead the jury."
The court concluded there were sufficient indicia of reliability to support admission under section 1360 of F.A.s statement that defendant made her suck his "ta-ta" and nasty juice came out. It noted that according to D.A., F.A. "blurted out" the statements "in a matter-of-fact way."
4. F.A.s Statements To Her Mother:
In a third section 402 hearing, F.A.s mother C.A. testified about statements made by F.A. on December 12, 2004. Just before dinner, F.A. told C.A. that she had seen defendants "ta-ta." C.A. explained, "That is what we call her private parts." C.A. asked F.A. about her statement before bedtime later in the evening: "I asked her if [defendants] clothes were on. She said yes, his clothes were on. And . . . at that point she said that he put or she put his ta-ta in her mouth and it tasted nasty." F.A. said her clothes were on and defendant did not see her "ta-ta."
The court ruled the statements were admissible.
B. The Prosecutions Evidence At Trial:
1. F.A.s Testimony:
F.A. was the prosecutions first witness at trial on March 10, 2005. She was born on July 16, 2001, and was three years eight months old at the time of trial. F.A. testified she lived with her mother, defendant, and sister. She was sad that defendant was no longer around. F.A. said she liked him.
When the prosecutor showed F.A. a drawing of a female, she identified various body parts, but said she had no name for the groin area other than "butt." She also identified body parts on a drawing of a male, but denied having a name for that part of the boys body. The prosecutor asked F.A. if she had ever seen a penis on "any boy." F.A. responded that she had seen it on defendant. However, F.A. denied touching defendants penis or telling anyone that she had. F.A. also denied that anyone touched her groin area. She stated she did not tell anyone that defendant had touched her there. F.A. stated she was bothered by questions about body parts. When asked why, F.A. responded, "Because."
F.A. acknowledged that once, when she had scratched her stomach on a tree, she told her mother that defendant had cut her with a sharp knife. F.A. testified she was "just kidding" when she said that. She could not remember whether she told her mother she was kidding.
2. C.A.s Testimony:
C.A. began by testifying her daughter F.A. had above average communication skills and was able to verbally recount past events that took place at preschool.
Defendant was C.A.s ex-boyfriend. The couple had lived together for two years. Defendant was the father of F.A.s younger sister. C.A. acknowledged it was possible that F.A. had observed C.A. and defendant having sexual intercourse at some time.
Defendant cared for F.A. and her sister on December 12, 2004, while C.A. was at work. Just before dinner that evening, F.A. told C.A., "I saw [defendants] ta-ta." C.A. explained that "ta-ta was a term she and F.A. had used to describe F.A.s "private part" since F.A. was 18 months old. F.A. did not use that term for any other part of her body.
At bedtime later that night, C.A. questioned F.A. about the statement. When asked if defendants "clothes were on," F.A. responded, "[Y]es, his clothes were on." F.A. told C.A. defendant did not see her "ta-ta" because her clothes were on. At some point in the same conversation, F.A. volunteered that, "she put his ta-ta in her mouth and it tasted nasty." F.A. described defendants penis by pointing her finger. The following morning, C.A. told her grandmother, E.M., what F.A. had said.
C.A. testified she confronted defendant with the incident "every day" and no longer left F.A. alone with him. She did not report the incident to law enforcement because she did not want to lose the income defendant provided.
According the C.A., F.A "[b]asically . . . tells the truth." However, C.A. questioned stories F.A. told her after the December 12, 2004, incident. On one occasion, C.A. noticed F.A. had a scratch on her stomach when she picked the child up at her cousins house. F.A. told C.A. defendant had cut her with a sharp knife. A week and a half before trial, F.A. told C.A. she had been bitten by a scorpion in the back yard. When C.A. offered to go and kill the insect, F.A. said she was "just kidding" and started laughing. On another occasion, C.A. left F.A. at E.M.s house while C.A. came to court. Upon her return, F.A. reported that defendant had come to see her. When C.A. said, "[Defendant] is in jail," F.A. responded that defendant must have left the jail, come to see her, then returned to jail. F.A. never said she was kidding about defendants "ta-ta."
3. D.A.s Testimony:
F.A.s grandmother D.A. testified about statements F.A. made while D.A. was caring for her on December 24, 2004. D.A. had been away for a couple of weekends and had not seen F.A. for a while.
F.A. complained, "[M]y butt hurts," and D.A. suggested she have her bath. F.A. started to take off her clothes and said "her ta-ta hurt her." F.A. showed D.A. her vaginal area and D.A. saw that it was red. Once in the bath, F.A. told D.A. that defendant "made her suck his ta-ta" and "nasty juice came out."
D.A. testified she was shocked and upset. She called her mother E.M. to find out if something had happened while she was away. D.A. then called Child Protective Services and the police. She acknowledged that she had contacted Child Protective Services on an earlier occasion after she observed defendant disciplining F.A. in a restaurant.
4. F.A.s Interview With Rachelle Miller:
Rachelle Miller is a sexual assault and child abuse investigator for Calaveras County. She conducted a forensic interview of F.A. on December 27, 2004. The videotape of the interview was played for the jury in accordance with the stipulation of the parties.
At the start of the interview, Miller asked F.A. to identify colors on crayons. Next, she asked F.A. to position a crayon on top of, next to, underneath, and inside a pad of paper. F.A. followed Millers instructions correctly. Miller tested F.A.s understanding of the difference between the truth and a lie. F.A. stated her name correctly. When asked her age, F.A. displayed three fingers and counted up to five.
F.A. told Miller that she lived at her "grandpas," her "mommies" and her "grandmas." Questioned further, F.A. said that defendant lived with her and her mother. She said she liked defendant, but did not want to tell Miller what she did with defendant.
After reassuring F.A. that it was okay to "tell her things," Miller asked, "So what is it that you want to tell me about [defendant]?" F.A. responded, "[Defendant] just want me to suck his ta ta." Miller repeated, "To suck his ta ta?" and F.A. said, "Yeah."
Miller then asked F.A. to identify body parts on a picture of a "little girl" without clothing. F.A. identified a "ta ta" on the front and back of the girl depicted in the drawing. Similarly, she identified a "ta ta" on the front and the back of a drawing of a boys body.
Miller returned to questions about what F.A. did with defendant, and asked what kind of games they played. F.A. said, "Dont want to tell you right now," and indicated she wanted to play with the toys instead.
When Miller repeated that it was okay to tell her the truth, F.A. responded, "I know." F.A. then recounted that defendant made her suck his "ta-ta" on the couch at home. Defendant had his clothes off and F.A. had her clothes on. When asked to circle the "ta ta" on the anatomically correct picture of the boys body, F.A. pointed to the penis. She also indicated defendants "ta-ta" touched her vaginal area. F.A. told Miller that defendants "ta-ta" was black and orange.
F.A. initially stated that her mother and grandmother were at the house when defendant had her suck on his "ta-ta." She then said they were at work.
Miller said, "[Y]our grandma said you told her something about his ta-ta and the way it tasted, do you remember that?" F.A. responded, "Nasty." She described it as tasting like "poo-poo" and "pee-pee." When asked how she tasted defendants "ta-ta," F.A. told Miller it was in her mouth. At that point, the child leaned forward and puckered her cheeks. F.A. said "stuff" came out of defendants "ta-ta" that was black and pink and looked like paper. She told Miller she had never seen anyone elses "ta-ta."
DISCUSSION
I
Sufficiency of the Evidence
Defendant argues he is entitled to reversal because the evidence adduced at trial was insufficient as a matter of law to support the verdict. He stresses F.A.s young age and the fact she denied any inappropriate touching in her trial testimony. Defendant maintains "there is almost nothing whatsoever in [F.A.s] out-of-court statements that can be considered either credible or of solid value. Whatever is reasonable is joined with the fanciful and bizarre."
When a defendant challenges the sufficiency of the evidence, the reviewing court "must determine, in light of the whole record whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 510, italics omitted.) To be sufficient, evidence presented at trial need only "`"`reasonably justify the trier of facts findings"" when viewed in the light most favorable to the judgment and presuming in support of the judgment every fact reasonably deducible from the evidence. (People v. Stanley (1995) 10 Cal.4th 764, 793; see People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) In other words, "[i]f the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. [Citations.] . . . It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. [Citations.]" (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)
The jury convicted defendant of violating Penal Code section 288, subdivision (a) in count 1. The statute punishes "[a]ny person who willfully and lewdly commits any lewd or lascivious act, . . . , upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . ." (Pen. Code, § 288, subd. (a).) "[S]ection 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the `gist of the offense has always been the defendants intent to sexually exploit a child, not the nature of the offending act. [Citation.]" (People v. Martinez (1995) 11 Cal.4th 434, 444, italics omitted.) "`[T]he trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent. [Citations.]" (Id. at p. 445.)
In count 2, the jury convicted defendant of violating Penal Code section 288a, subdivision (c)(1). That statute punishes "[a]ny person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she . . . ."
In this case, the "whole record" before the jury included F.A.s out-of-court statements to C.A. and D.A., the forensic interview conducted by Rachelle Miller, and F.A.s trial testimony. Although there were inconsistencies and parts of F.A.s various accounts that might not be believed, two salient facts were repeated in the three-and-one-half-year-old childs statements to her mother, grandmother and the investigator: defendant made F.A. suck his "ta-ta" and it tasted "nasty." The jury decided these statements were more credible than F.A.s trial testimony in which she denied defendant touched her in an inappropriate way. Defendant does not dispute the victims age or his own age. We therefore reject defendants claim there is insufficient evidence to support the jury verdicts.
II
Admission of the Out-of-Court Statements
Defendant contends the court erred in admitting F.A.s statements to her mother and grandmother under section 1360. He argues the content and circumstances of the out-of-court statements lacked sufficient indicia of reliability to be admitted into evidence against him. We conclude there was no error.
Section 1360 reads in relevant part:
"(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse . . . performed with or on the child by another, . . . is not made inadmissible by the hearsay rule if all of the following apply:
"(1) The statement is not otherwise admissible by statute or court rule.
"(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.
"(3) The child either:
"(A) Testifies at the proceedings.
"(B) Is unavailable as a witness . . . . [¶] . . . [¶]
"(c) For purposes of this section, `child abuse means an act proscribed by Section . . . 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code . . . ."
In Idaho v. Wright (1990) 497 U.S. 805 , the United States Supreme Court provided a list of factors it considered relevant in determining the reliability of out-of-court-statements in abuse cases and whether the statements satisfied the requirement of "`particularized guarantees of trustworthiness" under the confrontation clause. (Id. at p. 817 .) Those factors include: "(1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) use of terminology unexpected from a child of that age; and (4) lack of a motive to fabricate." (People v. Eccleston (2001) 89 Cal.App.4th 436, 445 (Eccleston), citing Idaho v. Wright, supra, at pp. 821-822 .) Whether the court considered the victim competent as a witness is also germane to the question of trustworthiness. (Eccleston, supra, at p. 446.) "A trial courts findings concerning the indicia of reliability are subject to independent review on appeal." (Id. at p. 445.) Our independent review demonstrates F.A.s statements to her mother and grandmother contained "sufficient indicia of reliability" for admission at trial. (§ 1360, subd. (a)(2).)
The circumstances described by C.A. and D.A. in the section 402 hearings show that F.A.s statements were spontaneous and consistent. She volunteered the information she had seen defendants "ta-ta" to her mother just before dinner on December 12, 2004. C.A. questioned her daughter further at bedtime and F.A. told her that defendant "put or she put his ta-ta in her mouth and it tasted nasty." Two weeks later, F.A. complained to D.A. that her "butt" hurt and pointed to "her female parts." D.A. suggested a bath and as F.A. was getting into the bathtub "she just blurted out" that defendant made her suck his "ta-ta." A few minutes later F.A. told D.A. that nasty juice came out.
There is little evidence concerning F.A.s mental state at the time she made the statements to C.A. and D.A. However, nothing in the record suggests she was angry or upset at the time she told her mother and grandmother what had happened.
F.A. used words she understood to describe conduct a child her age would not be expected to have seen or experienced. The term "ta-ta" was one used by F.A. and her mother to describe F.A.s "private parts." F.A. generalized and used the same term to describe defendants private parts — that is, the part of his body that he made her suck. In talking to her grandmother, F.A. used the word "juice," a term a young child would understand, to describe what came out of defendants "ta-ta." The court could conclude that a three-and-one-half-year-old child would not be expected to know that liquid came out of a mans penis unless she had seen it.
There is nothing in the record to suggest F.A. had a motive to fabricate the story about defendant. She testified at trial that she liked him and was sad he was no longer around. The stories defendant highlights as examples of F.A.s lack of truthfulness were told after the December 12, 2004, incident.
The Attorney General suggests in his brief that section 1360 was inapplicable because F.A.s statements were "otherwise admissible" as inconsistent statements under section 1235. Of course, at the time the court ruled the statements admissible at the close of the section 402 hearings, F.A. had not yet testified at trial that defendant had not touched her in an inappropriate way. Defendant did not object to introduction of F.A.s out-of-court statements on grounds section 1360 was inapplicable after F.A. testified, likely because the statements would have been admissible under section 1235, as the Attorney General suggests.
III
F.A.s Competency as a Witness
Defendant maintains the court "reached too far" and abused its discretion in ruling three-and-one-half-year-old F.A. was competent to testify as a witness. Defendant focuses on inconsistencies in F.A.s responses to the courts questions in the section 402 hearing and Rachelle Millers testimony regarding the forensic interview. He also emphasizes other cases where older children were found competent to testify and argues that finding a three year old competent "stretches the limits of judicial discretion."
As a general rule, every person is qualified to be a witness regardless of his or her age. (§ 700.) "[A] witness must be allowed to testify unless he or she (1) cannot communicate intelligibly, (2) cannot understand the duty of truthful testimony, or (3) lacks personal knowledge of the events to be recounted." (People v. Anderson (2001) 25 Cal.4th 543, 574; see § 701.) "The party challenging the witness bears the burden of proving disqualification, and a trial courts determination will be upheld in the absence of a clear abuse of discretion." (People v. Mincey (1992) 2 Cal.4th 408, 444 (Mincey).) We conclude there was no abuse of discretion in this case.
After examining F.A. in the section 402 hearing, the court was satisfied she had "the ability to make herself understood" and "appreciate[d] her duty to tell the truth in this proceeding." The court questioned F.A. about her age, the names of her friends and teachers, and her favorite color. It then questioned her carefully about the difference between the truth and a lie.
Although F.A. suggested nothing bad happened to her when she told a lie, "an actual direct threat of punishment for not telling the truth is not a prerequisite for a trial courts determination that a person is competent to be a witness." (Mincey, supra, 2 Cal.4th at p. 444.) And contrary to defendants argument that inconsistencies in F.A.s responses rendered her incompetent to testify, "[i]nconsistencies in testimony and a failure to remember aspects of the subject of the testimony . . . do not disqualify a witness. [Citation.] They present questions of credibility for resolution by the trier of fact. [Citations.]" (Mincey, supra, 2 Cal.4th at p. 444.) While it might be unusual for a court to find a very young child competent as a witness, the record supports the courts determination that this three-and-one-half-year-old child could testify.
IV
CALJIC No. 2.20.1
The court instructed the jury on how to evaluate the testimony of a child under the age of 10 in accordance with CALJIC No. 2.20.1 which read: "In evaluating the testimony of a child ten years of age or younger, you should consider all of the factors surrounding the childs testimony, including the age of the child and any evidence regarding the childs level of cognitive development. [¶] A child[,] because of age and level of cognitive development[,] may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. [¶] Cognitive means the childs ability to perceive, to understand, to remember and to communicate any matter about which the child has knowledge."
Defendant argues the court denied him his constitutional right to due process and trial by jury. Specifically, he asserts the language of the instruction lessened the prosecutions burden of proof.
The first paragraph of CALJIC No. 2.20.1 is an instruction the Legislature decided must be given upon request in any criminal proceeding in which a child 10 years of age or younger testifies. (Pen. Code, § 1127f.) The last paragraph adds language in addition to that required by the Legislature. By enacting Penal Code section 1127f, the Legislature adopted "the modern view of criminal jurisprudence that rejects traditional notions of child witnesses as susceptible to leading questions, incapable of recalling prior events accurately, and neither reliable nor truthful." (People v. McCoy (2005) 133 Cal.App.4th 974, 978-979 (McCoy), citing People v. Jones (1990) 51 Cal.3d 294, 315.)
CALJIC No. 2.20.1 has been upheld consistently in the face of constitutional challenges, including those raised by defendant in the case before us. (McCoy, supra, 133 Cal.App.4th at pp. 978-980; People v. Jones (1992) 10 Cal.App.4th 1566, 1572-1574; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392-1394; People v. Harlan (1990) 222 Cal.App.3d 439, 455-456.) We reject defendants challenge for the reasons set forth in those decisions.
V
Cumulative Errors
Having rejected defendants various claims of error at trial, we also reject his claim of cumulative error.
VI
Denial of Probation
Penal Code section 1203.066, subdivision (a)(8) provides: "Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons: [¶] . . . [¶] A person who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age." The statute defines "substantial sexual conduct" to include oral copulation. (Pen. Code, § 1203.066, subd. (b).) Under a limited exception to Penal Code section 1203.066, subdivision (a)(8), the court may grant defendant probation if it finds, among other things, that "[r]ehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence." (Stats. 1997, ch. 817, § 13; former Pen. Code, § 1203.066, subd. (c)(3).)
At sentencing, defense counsel urged that "the court could still act within its jurisdictional discretion by making a grant of probation conditioned upon [defendant] being admitted into an appropriate program, thereby establishing his amenability to treatment. His failure to complete the program would then amount to a violation of probation and a prison term could then be imposed without contest." The court declined to follow this course of action.
On appeal, defendant contends the court failed to properly exercise its sentencing discretion when it denied him probation pursuant to Penal Code section 1203.066, subdivision (a)(8). Citing the courts reference to lacking jurisdiction to grant probation, defendant maintains the court "lack[ed] a comprehensive understanding of its discretion under the statute."
Although the court referred to Penal Code section 1203.066, subdivision (a)(6) when it denied defendant probation, there is no serious dispute that subdivision (a)(8) applied.
Prior to sentencing, the court reviewed the probation reports and psychiatric evaluations prepared by Dr. Gary L. Cavanaugh pursuant to Penal Code section 288.1. Dr. Cavanaughs evaluations included his conclusion that given defendants "adamant denial" of the offenses, defendant could not complete a sexual offenders program, and was therefore "not amenable to rehabilitation." The supplemental probation report cited Dr. Cavanaughs conclusions and stated: "Because the feasibility of the defendants rehabilitation is in question, it does not appear that the defendant is eligible for probation [pursuant to Penal Code section 1203.066 subdivision (a)(8)]."
After hearing argument on the question of probation, the court ruled: "The Court does not believe that [defendant] is eligible for probation pursuant to Penal Code section 1203.066(a)(6) [sic ]. The Court referred this back to Dr. Cavanaugh for a second time to see if there was any possibility or any chance that the Court could do something other than send the defendant to state prison. The Court does not believe that it has jurisdiction to do so. If it did, I dont believe the factors are sufficient for the court to suspend execution of the sentence." The court had previously noted in its tentative ruling that defendants "prior performance on conditional sentence [was] unsatisfactory . . . ."
We read the courts reference to "jurisdiction" as equivalent to the court saying defendant was statutorily ineligible for probation. The courts ruling is supported by the record — specifically, Dr. Cavanaughs conclusion that defendant was not amenable to rehabilitation. We conclude there was no misunderstanding and no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We Concur:
SIMS, Acting P.J.
DAVIS, J.