Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F03397
HULL, Acting P.J.A jury convicted defendants Russell Stephen Grant and Donald C. Rhodes of one count of selling cocaine base. (Health & Saf. Code, § 11352, subd. (a).) The trial court found prior convictions to be true and sentenced defendant Grant to an aggregate term of eight years, and defendant Rhodes to an aggregate term of seven years.
Both defendants appeal, raising some claims individually and some jointly. They assert that (1) their cases should have been severed, (2) defendant Grant was improperly shackled in the courtroom, (3) the court did not instruct on all of the elements of the charged offense, (4) the court erred in denying defendant Rhodes’s request for entrapment instructions, (5) the court gave an inadequate response to jury questions about aiding and abetting, (6) the court erred in instructing the jury when it reported a deadlock, and (7) sentences were incorrectly imposed on defendant Rhodes for prior prison term enhancements under Penal Code section § 667.5, subd. (b); unspecified section references that follow are to the Penal Code. We agree in part with this last contention and therefore remand the matter for resentencing, but otherwise affirm the judgment.
Facts and Proceedings
This case involves the sale of cocaine base to an undercover officer. The officer, who was in plain clothes, rode his bicycle to a light rail station in Sacramento. Defendant Rhodes walked past him and the officer nodded at him. When Rhodes nodded back and asked what the officer was doing, the officer replied that he was “just trying to see if anybody has it going on out here” to indicate that he was looking for narcotics activity. He said he wanted to purchase a “dub,”
a $20 quantity of cocaine base.
Rhodes looked toward the end of the platform at a group of four men and asked the officer if he had “hit those guys up down there.” The officer responded that they had not even looked at him. Rhodes said, “Well, if you help me out, I will see if I can hook you up.”
The officer gave Rhodes a prerecorded $20 bill and Rhodes walked toward the group. Other people momentarily blocked the officer’s view and he lost sight of Rhodes for 10 to 15 seconds. He then saw Rhodes and defendant Grant walking away from the group. Grant spit something into his hand and gave it to Rhodes. Rhodes put it in his mouth, walked back to the officer and said he had “it” in his mouth. Rhodes spat out two small rocks of cocaine wrapped in plastic, and the officer gave Rhodes $2, also in recorded bills.
Upon the officer’s signal, other officers arrested both defendants. Defendant Rhodes had the $2 in his pocket. Defendant Grant did not have the recorded $20 bill and it was not recovered.
Both defendants were charged with the sale of cocaine base. At trial, the undercover officer described the transaction and identified both men. Neither defendant testified at trial.
In arguments to the jury, counsel for defendant Grant criticized the police work as sloppy and asserted that the officer had misidentified Grant. Counsel for defendant Rhodes emphasized that Rhodes did not initiate this transaction but instead was approached by the undercover officer. She argued that there was insufficient evidence to support a felony conviction.
The jury convicted both defendants as charged, and the trial court found charged priors to be true. The court sentenced defendant Grant to an aggregate sentence of eight years and defendant Rhodes to an aggregate sentence of seven years. Both defendants appeal.
Discussion
I
Severance Motion
Defendant Grant contends that the trial court should have granted his motion to sever his case from that of codefendant Rhodes because the admission of a statement by Rhodes violated Aranda/Bruton protections. (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476].) There was no such violation.
In light of the clear legislative preference for joint trials (see § 1098), separate trials are appropriate only in limited situations, such as when a codefendant has given an incriminating confession. (People v. Box (2000) 23 Cal.4th 1153, 1195.) A trial court’s ruling on a motion for separate trials will be reversed only for abuse of discretion. (Ibid.)
Under Aranda/Bruton, a defendant’s Sixth Amendment right to cross-examination is violated by the admission of a nontestifying codefendant’s incriminating statement that implicates the defendant. However, if the statement can be edited by replacing the nondeclarant’s name with neutral and nonidentifying terms, a violation of the confrontation clause may be avoided. (See People v. Archer (2000) 82 Cal.App.4th 1380, 1386-1387.) “[T]he efficacy of this form of editing must be determined on a case-by-case basis in light of the other evidence that has been or is likely to be presented at the trial. The editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated[.]” (People v. Fletcher (1996) 13 Cal.4th 451, 456.)
At trial, defendant Grant moved to sever his case from that of his codefendant, asserting the case against him was relatively weak compared to that against Rhodes. At the same time, he raised Aranda/Bruton concerns focusing on the admission of a statement by defendant Rhodes, and the discussion of these issues became intertwined.
According to the prosecutor’s offer of proof, when the undercover officer told Rhodes that he was looking for drugs, Rhodes responded, “Have you talked to those guys over there?” and pointed to a group of people. Defendant Grant asserted that this statement implicated him in the drug sale because drugs were obtained after Rhodes approached that group and the officer identified Grant as the person with whom Rhodes made contact.
The trial court refused to sever the cases and found Aranda/Bruton inapplicable. Out of an abundance of caution, the court stated that it intended to admonish the jury that “they are not to take that [statement] as any indication of knowledge on Mr. Rhodes’ part that any of those people are actually drug sellers.” This suggestion was apparently forgotten, however, as no such instruction was requested or given.
On appeal, defendant again asserts that his motion to sever should have been granted because of Aranda/Bruton problems.
We disagree.
The statement at issue is missing the predicate for Aranda/Bruton: there was no incriminating statement. The remark by defendant Rhodes did not incriminate himself or defendant Grant. He simply asked the officer if he had “talked to those guys over there.” As the People point out, nothing illegal had happened at this point, and Rhodes’s statement did not implicate defendant Grant in any wrongdoing. The concerns involved in an Aranda/Bruton situation are not present.
But even if we were to conclude otherwise, defendant cannot demonstrate prejudice. “Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41.)
Here, defendant Rhodes’s statement was of minimal importance given the other evidence of defendant Grant’s involvement in the sale of cocaine base. The undercover officer saw Rhodes and Grant together, saw Grant spit something into his hand and give it to Rhodes, and then saw Rhodes put it in his mouth. Rhodes later spat out two rocks of cocaine for the undercover officer. The officer had a clear look at defendant Grant and described his clothing. No one else was similarly attired. At trial, he positively identified defendant Grant. There is no reasonable probability that the jury would have reached a different verdict had defendant Grant been tried separately. The error, if any, was harmless.
II
Shackling of Defendant Grant
Citing cases such as People v. Duran (1976) 16 Cal.3d 282, defendant Grant contends that the court erred in permitting him to be shackled in the courtroom absent a manifest need for restraints. Defendant’s failure to raise this issue in the trial court forfeits his claim on appeal.
Just as the voir dire of the first panel of jurors was about to begin, counsel for defendant Grant made the following motion: “At this time I am going to challenge the panel as a whole, Your Honor, and request a new panel for the reason that the Deputy required everyone rise, and the entire room stood up except my client, who is chained to a chair, and was . . . unable to get up. [¶] And for that reason, I think he was put in a position where he looked disrespectful to the court, and the full formal session was announced by the bailiff. [¶]
I know it wasn’t intentional, but the point of it is that I think in this case now we have a situation where my client now appears to everyone who was in here who stood up, that he doesn’t respect the court. [¶] And it could be cured by a new panel of 60. But I think [it], in fact, prejudices [defendant] Grant, and that’s the basis of my motion.”
The trial court denied the motion, finding no undue prejudice. The court also commented that “by the end of this trial, any juror with any sense is going to realize that these defendants are in custody.” The court added that it was planning to “voir dire on defendants in custody, and that they are not to take that into consideration.” When the court asked if anyone objected to such questioning, both attorneys replied, “No.”
On appeal, defendant Grant transforms his exchange with the trial court into an assertion that his constitutional rights were violated when the court permitted defendant to be shackled without any evidence of manifest need.
“It is settled that the use of physical restraints in the trial court cannot be challenged for the first time on appeal.” (People v. Tuilaepa (1992) 4 Cal.4th 569, 583; accord People v. Ward (2005) 36 Cal.4th 186, 206.)
Defendant’s only objection in the trial court was to the fact that the deputy had ordered everyone to rise and defendant had been unable to do so. Defense counsel was concerned that the jury panel would think defendant Grant was disrespectful, and he therefore asked that the panel be excused and a new panel called, a solution that he argued would cure the problem. With a new panel, presumably all parties could remain seated and defendant would not be singled out. At no time did counsel suggest that defendant was improperly restrained. The only basis for concern was defendant’s inability to rise when others in the courtroom did so.
As in Ward, “[d]efendant failed to make an appropriate and timely objection regarding his shackling on constitutional or any other grounds. In the absence of an objection, the trial court had no opportunity to set forth the reasons it was deemed necessary for defendant to [be shackled] in the courtroom. For all we can determine, had the matter been brought to the court’s attention, it would have been fully justified. Having failed to preserve the record, defendant has forfeited this claim on appeal.” (People v. Ward, supra, 36 Cal.4th at p. 206.)
III
Instruction on Sale of Cocaine Base
Defendants Grant and Rhodes contend that the court’s instruction on the sale of cocaine base (Jud. Council of Cal. (2007-2008) Crim. Jury Inst., CALCRIM No. 2300) failed to include a requisite element for that offense, namely, that the sale must involve a usable amount of the controlled substance. Defendants are wrong: sale offenses do not require a usable quantity of a drug.
“A conviction for selling controlled substances does not require proof of possession at all, much less possession of a usable quantity.” (People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524.) The “usable quantity” requirement applies in possession cases, not cases of sale. (People v. Mata (1986) 180 Cal.App.3d 955, 959.) Defendant’s reliance on cases such as People v. Leal (1966) 64 Cal.2d 504, is misplaced because those cases involved possession, not an intentional sale. As one court commented in a case involving sale of methamphetamine, “Rather than ‘how usable,’ indeed ‘whether usable,’ the fact of the presence of methamphetamine in a completed sale distinguishes the case before us from the ‘mere trace’ or ‘residue’ concerns of those courts which have had to deal with contaminated spoons, containers, etc., when mere possession has been the charge.” (People v. Hardin (1983) 149 Cal.App.3d 994, 998-999.) The concerns in Leal about whether a defendant had knowing possession of an illegal substance are not implicated in an intentional sale.
The trial court fully instructed on the elements of sale of cocaine base. Contrary to defendants’ claim, “usable quantity” is not one of those elements. There was no error.
IV
Refusal to Instruct on Entrapment
Defendant Rhodes contends that the trial court erred in refusing his request to instruct the jury on entrapment. There was no error.
The trial court was required to instruct on entrapment only if substantial evidence supported that defense. (People v. Watson (2000) 22 Cal.4th 220, 222.) “In California, the test for entrapment focuses on the police conduct and its objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. [Citation.] ‘[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect . . . is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning or other affirmative acts likely to induce a normally law-abiding person to commit the crime.’” (Id. at p. 223, italics omitted.)
CALCRIM No. 3408, the instruction on entrapment, explains: “Some examples of entrapment might include conduct like badgering, persuasion by flattery or coaxing, repeated and insistent requests, or an appeal to friendship or sympathy. [¶] Another example of entrapment would be conduct that would make commission of the crime unusually attractive to a normally law-abiding person. Such conduct might include a guarantee that the act is not illegal or that the offense would go undetected, an offer of extraordinary benefit, or other similar conduct.”
The trial court refused to give this instruction, finding that there was no evidence of any such behavior. Defense counsel argued that it was the undercover officer who first nodded at defendant, who first initiated conversation, and who first raised the issue of narcotics. The court reaffirmed its ruling and refused to instruct on entrapment.
On appeal, defendant again emphasizes that it was the undercover officer who initiated the drug buy and that defendant was simply passing by the light rail station when the officer contacted him. He contends that the officer “went beyond merely providing an opportunity, he actively solicited [defendant’s] participation by approaching him asking him for drugs.” He asserts that the jury should have been given the opportunity to determine whether this conduct constituted entrapment.
But who spoke first to whom is not the test for entrapment. The record is devoid of any evidence of badgering, cajoling or any other overbearing conduct by the undercover officer. Nothing the officer said or did would entice a normally law-abiding person into procuring drugs. Stings are a permissible law enforcement technique and are invalid “‘only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime.’” (Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 569.)
Because there was no evidence of entrapment, the trial court properly refused to instruct on this defense. There was no error.
V
Instruction to Deadlocked Jury
After deliberating for a period of time, the jury sent the court a note saying it was unable to reach a verdict. Forty minutes later, however, it sent a note asking for clarification on aiding and abetting principles. (We address the adequacy of the court’s response to this second question in the next section of this opinion.) The court met with counsel to discuss how to respond to the jury’s claimed deadlock. Over defense objections, the court instructed the jury to deliberate further and gave a lengthy instruction to assist in those deliberations. Later that day, the jury returned its verdicts convicting defendants.
On appeal, defendants contend that the trial court erred in giving this instruction to the reportedly deadlocked jury, particularly because the court did not ascertain whether there was a reasonable probability of the jury reaching a verdict before giving the instruction. However, defendants also recognize that in People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1122, we rejected the same claims and approved an instruction virtually identical to that given here. Defendants ask us to reconsider that decision.
We decline this request. In Moore, we commended the trial court for crafting “such an excellent instruction.” (People v. Moore, supra, 96 Cal.App.4th at p. 1122; see also People v. Hinton (2004) 121 Cal.App.4th 655, 661 [reiterating that Moore provides a model instruction].) Our opinion has not changed. The trial court’s instruction to the jury in this case was proper. There was no error.
VI
Instruction and Jury Question on Aiding and Abetting
Defendants contend that the trial court failed to give an adequate response to a jury question about aiding and abetting liability. Defendant Rhodes also suggests that the court failed to instruct sua sponte on the requisite intent for aiding and abetting. Neither of these claims has merit.
The trial court instructed the jury on aiding and abetting pursuant to CALCRIM No. 401, stating in part:
“To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that one, the perpetrator committed the crime. [¶] And two, the defendant knew that the perpetrator intended to commit the crime, and three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime. [¶] . . . [¶]
“Someone aids and abets a crime if he knows of the perpetrator’s unlawful purpose, and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.”
The trial court then instructed the jury on the elements of the crime of sale of cocaine base pursuant to CALCRIM No. 2300, instructing in relevant part: “To prove that a defendant is guilty of this crime, the People must prove that one, the defendant sold, furnished, or gave away a controlled substance. [¶] Two, the defendant knew of its presence. And three, the defendant knew of the substance’s nature or character as a controlled substance. And four, the controlled substance was cocaine base.
“Selling for the purpose of this instruction means exchanging a controlled substance for money, services, or anything of value. [¶] The People do not need to prove that the defendant knew [which controlled substance he sold], furnished, or gave away, only that he was aware of the substance’s presence, and that it was a controlled substance.”
We first address defendant Rhodes’s suggestion that the trial court failed to instruct on the specific intent requirement for aiding and abetting. As the California Supreme Court has explained, liability under this theory requires proof that “an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560; accord People v. McCoy (2001) 25 Cal.4th 1111, 1118.) That is precisely what the court instructed when it gave CALCRIM No. 401. There was no error.
We turn to the other claim raised by defendants, namely, that the trial court failed to give an adequate response to the jury’s question about aiding and abetting.
As previously noted, after first reporting a deadlock, the jury sent a note to the trial court about aiding and abetting liability. In a rather confusing question, the jury asked:
“If in the aiding and abetting in Sec. 401 considers a defendant guilty if they knew of intent then would that make him guilty of Sec. 2300 charge #1? Even if I believe if 2-4 is true of the guilt?”
In reviewing the jury’s questions with counsel, the court commented that the first sentence of this note “is fairly clear, the second is fairly unintelligible.” Discussion turned to the issue of what instruction to give when the jury indicated a possible deadlock, and the court stated, “I think in addition to this Moore instruction, that I will be advising this jury that although I don’t completely understand the second part of their . . . request, that I believe they will find the answer in the instructions that I have already given them.” Neither defendant voiced any objection to this plan.
The jury came into the courtroom, and the court noted that although the jury had indicated at 10:20 a.m. that it was at a stalemate, it had apparently continued to deliberate as evidenced by its 11:00 a.m. request for guidance. The court continued, “I will say that although I don’t completely understand your most recent request, that I believe you are going to find the answer in the instructions I have already given you.” The court then instructed the jury on the deadlock issue, as previously discussed.
The court concluded its comments to the jury by ordering it to continue deliberations, adding, “If you have other questions, concerns, requests, or any communications you desire to report to me, please put those in writing on the form the bailiff has provided.”
Following that instruction, the foreperson asked, “Based on that last question that we presented to you, is there anything that you can tell us now, or is it something that we are going to have to go back in the room and reread the instructions and interpret for ourselves?” The court replied, “I think if you go back in and reread the instructions, that you will find the answer.” The court added, “Even if for some reason it’s not clear, I think going through that exercise will be helpful in identifying any areas in which you can agree, or identifying disagreements, so that they can be the subject for further discussion.”
Defendants contend that the court’s response to the jury’s question was inadequate and requires reversal of their convictions. The People respond that the failure to object to the court’s response amounts to invited error or forfeiture of any claim of error. The People are wrong. Unlike the cases relied upon by the People, such as People v. Rodrigues (1994) 8 Cal.4th 1060, 1193, and People v. Mays (2007) 148 Cal.App.4th 13, 37, defendants neither suggested nor consented to the court’s response. Defendants’ claim is properly before us. (See § 1259.) However, we find it unpersuasive.
Section 1138 provides that when the jury wishes to be informed on a point of law arising in a case, “the information required must be given.” “The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
Here, the jury’s questions related to aiding and abetting liability. The court appropriately referred the jury back to the instructions that fully and completely outlined these principles. In response to further inquiry from the foreperson, the court said it thought that it would be helpful to go review the instructions to clarify any areas of agreement and identifying areas of disagreement “so that they can be the subject for further discussion.” The court did not cut off any further requests for clarification; to the contrary, the court told the jury that it should submit any additional questions or concerns to the court.
The trial court acted well within its discretion in responding to the jury’s question. There was no error.
VII
Enhancements under Section 667.5, subdivision (b)
Defendant Rhodes raises two challenges to the enhancements imposed under section 667.5, subdivision (b), one relating to the court’s decision to strike one of the priors and the other relating to the validity of a charged prior prison term. We agree with the People that the matter must be remanded to the trial court for resentencing.
The information charged defendant Rhodes with four prior prison terms under section 667.5, subdivision (b) as follows: (1) a 1988 term for battery with serious bodily injury in Santa Clara County, (2) a 1991 term for possession of a controlled substance in San Francisco County, (3) a 1994 term for possession of a controlled substance in Sacramento County, and (4) a 1999 term for failure to register as a sex offender in Sacramento County.
Defendant Rhodes asked the court to strike all or some of the priors, emphasizing that he had been willing to take the prosecutor’s pretrial offer but that codefendant Grant’s unwillingness had scuttled that resolution. He noted that one of his priors had occurred 19 years earlier, and he characterized his role in the charged offense as less egregious than that of Grant.
The prosecutor generally agreed with this characterization, noting that although defendant had a lengthy criminal history, “he did try to plea with an early resolution, and he was the middleman, so to speak, in this situation.” The prosecutor stated defendant Rhodes should be given “a little bit of consideration,” and added that she “would not be opposed to striking the oldest prior, one-year prior, for [defendant] Rhodes.”
In sentencing defendant, the court stated that it would “accede to the District Attorney’s request” and would sentence defendant “to only three of these priors. The first three for each of these priors, I’m going to order you to serve an additional and consecutive one year in state prison. I will strike the last prior in the interest of justice pursuant to . . . section 1385.”
On appeal, defendant contends that because the court struck the first 1988 prison prior enhancement, it must also strike the second 1991 prior because these terms were served concurrently and do not qualify as separate prison terms for purposes of section 667.5, subdivision (b). (See People v. Jones (1998) 63 Cal.App.4th 744, 747; § 667.5, subd. (g).)
The People respond that the court did not strike the 1988 prior term enhancement but instead struck the enhancement involving defendant’s last prison term in 1999. They acknowledge that because sentences for the first and second charged enhancements were served concurrently, the court could not impose two enhancements on those charges. The People note, however, that the court clearly intended to impose three additional years as enhancements; had the court struck the oldest enhancement as the prosecutor had suggested, there would not be an issue. The People ask that we remand the matter for resentencing.
We agree that remand is necessary. The court indicated that it was going to impose three one-year enhancements for prior prison terms, but then struck the most recent term. If the most recent prison term is struck, defendant can be sentenced only on two enhancements because the two oldest enhancements were served concurrently and involved only one separate prison term. (People v. Jones, supra, 63 Cal.App.4th at p. 747; § 667.5, subd. (g).) We remand to the trial court to exercise its discretion and determine which priors should be stricken.
Defendant Rhodes raises other challenges to one of the charged enhancements, the most recent prior prison term. Although prosecution and sentencing for that case took place in 1999, the abstract of judgment indicates that the underlying conduct occurred in 1996. Other records indicate that the offense might have occurred in 1998, but this discrepancy is irrelevant for our purposes here.
Citing cases such as Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856], defendant contends that had he been sentenced to the presumptive midterm of two years rather than the upper term of three on this underlying conviction, he would have been free from custody for five years and not subject to an enhancement in the current proceeding for a prior prison term. Cunningham and Blakely are inapplicable to defendant. Both cases were decided well after defendant’s conviction was final, and cannot be applied retroactively. (In re Consiglio (2005) 128 Cal.App.4th 511, 514-516.)
In a second challenge to this particular prior prison term enhancement, defendant Rhodes suggests that his right to speedy trial might have been violated because his failure to register as a sex offender occurred in 1996 but he was not prosecuted until 1999. He contends that remand is necessary to determine the constitutional validity of this charged enhancement. Defendant is precluded from raising this claim by virtue of his guilty plea to that offense. Defendant’s prior prison term provides the ground for an enhancement under section 667.5, subdivision (b). Although defendant insists that he is not trying to set aside his earlier conviction, the only conceivable way to avoid an enhancement under section 667.5, subdivision (b) is to find the conviction underlying that prison term to be invalid. But defendant cannot assert such a claim. He did not obtain a certificate of probable cause to raise these concerns in an appeal from his plea, and he is precluded from doing so in a collateral proceeding here. (See People v. Mendez (1999) 19 Cal.4th 1084, 1094-1099; People v. Black (2004) 116 Cal.App.4th 103, 111-112.)
Disposition
The matter is remanded to the trial court with directions to resentence defendant Rhodes in accordance with this opinion. In all other respects, the judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.