Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC146905
Haerle, Acting P.J.
I. INTRODUCTION
A jury found Omar Yang Han and codefendant Cameron Gump guilty of first degree residential burglary (count 1; Pen. Code, § 459) and found Han further guilty of receiving stolen property (count 2; § 496, subd. (a)). The court granted Han five years probation, suspending imposition of sentence. Han appeals, claiming two instances of prejudicial instructional, as well as double punishment at sentencing in violation of section 654. We reject his claims and affirm the judgment.
All unspecified section references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
The case arises from a residential burglary by three intruders—Han, Gump and Defonte Ashby—all caught in the act by one of the residents, who knew them and had previously had Ashby over to the house. The three intruders were jointly charged, but after the information was amended to add charges against Ashby for post-burglary efforts to intimidate witnesses, the court denied the People an eve-of-trial continuance and proceeded as to Han and Gump alone. None of the codefendants testified below, and Gump is not a co-appellant.
The residence was the San Anselmo home of Maureen Massoletti and her 19-year-old son, Mason Massoletti. Mason had a bedroom there but also spent some weeks at his father’s house in Larkspur. Around 2:00 p.m. on April 4, 2006, Mason was driving from his father’s house with his girlfriend Melissa Chaison when he pulled up to the mother’s house, while the mother was still at work in San Francisco. He saw parked in the right side of the driveway, in front of the closed garage door and nearest the front door of the house, what he recognized as a silver Chrysler 300 that he had seen Han drive. Fairly certain that someone was in the house, Mason parked his own car to the left of the Chrysler, got out and, leaving Melissa to wait in the car, walked toward the front door.
Mason had known Ashby since meeting him in high school, where Ashby was a year ahead of him. Ashby was not a good friend of Mason’s, but a younger brother of Ashby’s was. Mason was beginning to befriend Ashby (enough that he might stop by the house unannounced), knew Gump less well, and knew Han hardly at all, but he would see all three at various places and knew that they were “always hanging out together.” Gump and Han had never been over to the house, but Ashby had and, about two weeks earlier, spent the night once, while the mother was out of town.
Mason knew from having used a hide-a-key in front of Ashby that Ashby knew the key to the front door was kept in a box there, and Mason had been cautious about this after the overnight stay, not replacing the key for some days until his mother had returned home. The mother worked office hours in San Francisco, and Mason had “partly” discussed with Ashby what she did. Melissa knew Ashby, Han and Gump as people she had gone to school with over the years. Earlier this day (April 4), Mason had gotten a call on his cell phone from Ashby but did not “pick up.”
Mason saw through a small window beside the front door that Gump was standing inside. The door was closed, but before Mason could reach it, Gump came out. “What the fuck are you doing in my house?” Mason challenged, but the six-foot, four inch Gump only looked down at him with a grin on his face, shoved him aside and said, in an angry tone suggesting he would “get physical,” “What’s up?” Gump walked on toward the Chrysler, carrying nothing. Mason did not give chase. Hearing ransacking or breakage coming from an inside office, he walked further into the house toward a rear door of the office, hoping not to be seen by whoever was in there. Then he saw Han. Han had already “figured out” his presence and came running of the office’s front door, cradling in his arms a bulky wicker-type bag of Mason’s mother’s that was “bulging full.” Mason grabbed Han as he ran past, but Han broke free and ran out the front door. Mason again did not give chase. Rather, knowing that only Ashby, not Han or Gump, knew about the hidden key, he started through the house looking for Ashby.
Outside, Melissa had not recognized whose car the Chrysler was. She got out of Mason’s car when she saw Gump emerge from the house and get into the driver’s seat of the Chrysler (carrying nothing and wearing no gloves). At that point she saw that Ashby was in the front passenger seat. Gump backed the Chrysler out of the driveway and drove off downhill. Melissa ran after to see where they were going and then saw Han come from the house with the wicker bag and run past her, chasing after the Chrysler and yelling for it to stop. When the Chrysler did stop, Han got into the backseat; and the car drove off again.
Back inside the house, Mason heard Melissa yell that Ashby was in the car. He grabbed his keys and came out in time to see the Chrysler near the bottom of the hill, Melissa partway down the hill, and Han yelling, “Stop, stop.” He saw the Chrysler quickly stop, Han stumble a bit, open the door, and dive into the back seat, and the Chrysler take off. He and Melissa called “911.” Mason and Melissa got into his car and drove down the hill but could not find the Chrysler in the traffic.
Mason used his cell phone to alert his mother at work about the break-in, and she drove home from San Francisco. She did not know Han, Bump or Ashby, had only heard her son mention Ashby’s name, and had never given any of the three permission to be in her home. She and Mason found most rooms of the house ransacked, including the living room, their bedrooms, and the office. Shelves and drawers were emptied onto the floor, and furniture was overturned and broken. It took time to fully assess all that was missing since some items were boxed in preparation for a move, but items missing from her bedroom closet included handbags, all of her jewelry, and $200 to $300 cash. A digital camera, a pair of binoculars, and computer equipment were among items missing from the office. The television, which Maureen always left on for he dog, was on, but the dog had been let free into the neighborhood. In the living room was a still-cold bottle of water from the refrigerator, and speakers had been removed from a stereo system, the wires cut with a knife from the kitchen. Missing from Mason’s downstairs bedroom were an expensive watch, a Play Station 2 (its wires pulled), and six DVD’s or video games. Missing also was the hidden key to the house, which was never recovered.
Police arrived promptly and interviewed Maureen and Mason Massoletti, and Melissa Chaison. Four days later, Detective Robert Crowley conducted a search of Han’s home in Novato as part of the investigation. The Chrysler 300 was parked to the rear of the residence, and in the garage, fresh footprints on a dusty floor led to a fresh footprint atop a step stool. On the highest shelf above the stool, atop other items, was the wicker bag filled with what Maureen would later identify, in interviews and at trial, as items taken from her home. These included pearl jewelry, a purse, and other jewelry from her closet, and the binoculars from the office.
The prosecutor argued burglary on theories of direct perpetration and aiding and abetting, stressing that Gump, who was not seen carrying property as he fled the house, could still be guilty as an accomplice, whether or not he actually took anything himself. The argument as to Han was that he either entered the house with an intent to steal or, if he formed that intent later, had it when he entered any of three interior rooms—the office and two bedrooms—from which property was taken.
Han’s counsel exploited lack of witnesses to what went on inside the house before Mason came home. Counsel argued that the circumstances—like parking in the driveway and lack of gloves or a bag for the loot—suggested a lack of planning and an entry without theft intent. Backed by instructions on lesser included offenses of unauthorized entry and grand theft, counsel argued that this was not burglary. He closed by saying he could not dispute that the evidence did show the lessers but urged jurors to acquit Han of burglary and, “if you have to get to the lesser,” use their “judgment.” Gump’s counsel similarly argued lack of planning or initial intent, calling it a “crime of opportunity,” and urged that his 20-year-old client was an unsophisticated follower. The jury found Han guilty as charged, of residential burglary and receiving stolen property, and Gump guilty as charged with burglary.
III. DISCUSSION
A. Instruction on Unanimity
To assist the defense strategy of questioning when Han formed his theft intent, his counsel requested a unanimity instruction modeled on CALCRIM No. 3500 that would have read as follows. “The defendant is charged with burglary in Count 1. The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed.”
Counsel urged that this was needed because evidence showed entries into several rooms of the house, by Han and Gump, but not “how long one or both remained in [sic], what the circumstances were, how long they were in there, if at all.” The court denied the request, explaining in part: “Circumstantially, there is evidence that more than one room was entered, but . . . if the jury finds there was a burglary, it was a continuous course of conduct and not something that requires unanimity instruction . . . .”
Han claims error, his appellate counsel now reasoning more elaborately: “In California, the crime of burglary may be committed either by entering a structure from the outside with felonious intent, or by entering a room within the structure with such intent. (People v. Sparks (2002) 28 Cal.4th 71, 88.) The jury in this case was so instructed. . . . Given the evidence . . ., it is apparent that jurors might have found [Han] guilty of burglary based on a finding that he (1) entered the house with the intent to commit theft, or (2) entered the house without the intent to commit theft, but thereafter entered one of the bedrooms (and no other room) with such intent, or (3) entered the house without the intent to commit theft, but thereafter entered the office (and no other room) with such intent. Each of these scenarios was distinctly possible, and while a jury finding that [Han] entered the house with the requisite intent to commit theft would appear to subsume the other two scenarios, the situations described in (2) and (3) . . . clearly represent discrete crimes, triggering the court’s duty to give a unanimity instruction in the absence of an election by the prosecutor as to which entry he was relying on to prove his case. [Citations.]”
We uphold denial of the instruction. “Th[e] requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.] . . . ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ [Citation.] [¶] On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant’s precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty. [Citation.] The crime of burglary provides a good illustration of the difference between discrete crimes, which require a unanimity instruction, and theories of the case, which do not. Burglary requires an entry with a specified intent. (Pen. Code, § 459.) If the evidence showed two different entries with burglarious intent, for example, one of a house on Elm Street on Tuesday and another of a house on Maple Street on Wednesday, the jury would have to unanimously find the defendant guilty of at least one of those acts. If, however, the evidence showed a single entry, but possible uncertainty as to the exact burglarious intent, that uncertainty would involve only the theory of the case and not require the unanimity instruction. [Citation.] Other typical examples include the rule that, to convict a defendant of first degree murder, the jury must unanimously agree on guilt of a specific murder but need not agree on a theory of premeditation or felony murder [citation], and the rule that the jury need not agree on whether the defendant was guilty as the direct perpetrator or as an aider and abettor as long as it agreed on a specific crime. [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132-1133 (Russo).)
This was not a case of multiple burglaries at different times and places, as hypothesized in Russo, and Han presents no case authority on point for his notion that uncertainty as to when a theft intent arose in the course of a residential burglary requires unanimity instruction. We conclude, as did the trial court, that such disagreement falls into the “theory” category for which no unanimity instruction is needed. An apt analogy is the distinction whether a defendant was a direct perpetrator or an aider and abettor, for that, too, could entail uncertainty about particular acts, like whether a defendant himself entered a particular room inside a home or, perhaps, stood outside that room and held a bag into which loot was placed by a cohort who did enter the room. If a jury need not unanimously agree on the factual “theory” posed by that conundrum, but is still satisfied unanimously and beyond a reasonable doubt that the defendant did one or the other and with requisite theft intent, then it follows that a jury need not agree on precisely when the intent arose or even which of several interior rooms the defendant entered.
Indeed, Han does not address the fact that his jury was instructed, not just on direct perpetration, but also on liability as an aider and abettor. The prosecutor stressed the accomplice theory, in jury argument as to Gump, stressing that Gump would be liable even if jurors questioned what his physical acts inside the house were. The accomplice instructions, however, were not worded so as to apply only to Gump, and the prosecutor’s argument thus did not prevent jurors from relying on that theory as to Han (cf. People v. Perez (1992) 2 Cal.4th 1117, 1125-1126). Han does not elaborate on this more directly in his briefing, but his hypotheses that Han may have personally entered just one room assumes that one or more cohorts entered and took property from other rooms.
Jurors were instructed on lesser offenses of unauthorized entry of a dwelling (§ 602.5, subd. (a)) and grand theft (§ 487, subd. (a)). They rejected them, and with them the defense argument that Han’s theft intent arose only after he entered either the house or a room inside. Jurors found Han guilty under unchallenged instructions that said that, for burglary, one essential element was that, “[w]hen he entered a building, or a room within a building, he intended to commit theft” (CALCRIM No. 1700). Moreover, this verdict was reached despite a special instruction number 2 that stated in part: “If, after considering the evidence in this case, you have a reasonable doubt whether a defendant possessed the required specific intent or mental state as to any charged offense, you must give the defendant the benefit of that doubt.” Thus, no juror doubted that Han formed a burglarious intent some time before he was caught emerging from one of the rooms with a bag stuffed full with loot—found later at his own home—that had come from multiple rooms in the house. Nothing in the denial of a unanimity instruction deprived Han of presenting, or the jury deciding, his intent defense.
Han also does not persuade us that jurors were prevented from distinguishing between multiple discrete crimes. (Russo, supra, 25 Cal.4th at p. 1132.) It is true that our Supreme Court in Russo, a case of burglarious entry for rape, held that the intent element is satisfied by a felonious intent that arises after an initially innocent entry but before entry into a separate room within the same building. (People v. Sparks, supra, 28 Cal.4th at pp. 81-82.) That same decision, however, also declined to decide whether, as a result, one may suffer multiple convictions—i.e., commit multiple discrete crimes—for multiple entries of different rooms within the same building (id. at pp. 87-88, fn. 21). Han’s briefing tries to artfully merge disparate concepts. Thus, for example, he states that since his conviction may have rested “on one or more discrete interior entries,” a unanimity instruction was needed so that jurors could “distinguish between these distinct crimes . . . .” We can agree that there may have been “discrete interior entries,” but not multiple “discrete crimes” within the meaning of the unanimity case law.
Russo dictates this result. “The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed her guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate ‘when conviction on a single count could be based on two or more discrete criminal events,’ but not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction.” (Russo, supra, 25 Cal.4th at pp. 1134-1135.)
Here, with Han being caught red-handed emerging from and fleeing the house with a bag full of loot from within, and the only question being whether he at some point prior made a qualifying “entry” with theft intent, there was no risk that the jury would “divide on two discrete crimes and not agree on any particular crime”; rather, there was simply a “possibility the jury may divide, or be uncertain, as to the exact way [he] [was] guilty of a single discrete crime.” (Russo, supra, 25 Cal.4th at p. 1135.) Error is not shown.
B. Instruction on Possession of Recently Stolen Property
Han contends that the giving of CALCRIM No. 376, a standard instruction on the use of the possession of recently stolen property to infer guilt, violated his rights to due process by allowing an “entirely illogical” inference and diluting the standard of proof beyond a reasonable doubt. We disagree.
The instruction read: “If you conclude that the defendant Han knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant Han of Residential Burglary in violation of Penal Code § 459 as charged in Count 1, based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed Residential Burglary . . . . [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant Han possessed the property, along with any other relevant circumstances tending to prove his guilt of Residential Burglary . . . . [¶] Remember that you may not convict a defendant of any crime unless you are convinced that each fact essential to the conclusion that a defendant is guilty of that crime has been proved beyond a reasonable doubt.” This is a reworking of CALJIC No. 2.15, a counterpart which has long withstood challenge in various contexts.
CALJIC No. 2.15 reads: “If you find that a defendant was in [conscious] possession of recently [stolen] [extorted] property, the fact of that possession is not by itself sufficient to permit an inference that the defendant _____ is guilty of the crime of ______. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. [¶] As corroboration, you may consider [the attributes of possession—time, place and manner,] [that the defendant had an opportunity to commit the crime charged,] [the defendant’s conduct,] [[his] [her] false or contradictory statements, if any,] [and] [or] [other statements [he] [she] may have made with reference to the property] [a false account of how [he] [she] acquired possession of the stolen property] [any other evidence which tends to connect the defendant with the crime charged].”
Taking first the claim of a diluted standard of proof, this is contrary to binding precedent concerning the CALJIC counterpart, and particularly unconvincing for the CALCRIM version here, which contains cautionary language not found in the CALJIC version. As explained in a burglary case where, as here, the effect of other standard instruction also had to be considered: “CALJIC No. 2.15 did not directly or indirectly address the burden of proof, and nothing in the instruction absolved the prosecution of its burden of establishing guilt beyond a reasonable doubt. Moreover, other instructions . . . properly instructed the jury on its duty to weigh the evidence, what evidence it may consider, how to weigh that evidence, and the burden of proof. In light of these instructions, there is ‘no possibility’ CALJIC No. 2.15 reduced the prosecution’s burden of proof in this case. [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 248.) The CALCRIM reference in this case to “corroborating evidence [that] need only be slight and need not by itself be sufficient to warrant an inference of guilt,’ like the parallel reference in the CALJIC version, refers to the corroboration needed before any inference may be drawn at all, not the ultimate burden of proof. Such instruction would not “be understood by the jury as suggesting that it need not find all of the statutory elements of burglary . . . had been proven beyond a reasonable doubt. Indeed, where identity of a perpetrator is in dispute or sought to be proved by circumstantial evidence, CALJIC No. 2.15 protect the defendant from unwarranted inferences of guilt based solely on possession of property stolen in the charged offense. Defendant’s effort to persuade us that the instruction does otherwise, an effort based on something the instruction does not state, fails.” (People v. Holt (1997) 15 Cal.4th 619, 677.)
With CALCRIM No. 376, moreover, there is now this added caution, “Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.” This reinforces the precedent from our Supreme Court, which binds us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Han invokes some federal circuit court opinions that have criticized use of the slight-evidence language, but this authority directly contradicts binding state high court precedent. The People also distinguish those cases factually, but given binding high court precedent, we will only observe that the federal cases do not address the effect of the added cautionary language in the CALCRIM version given here. One older lower state court precedent cited to us is distinguishable factually and as involving far different wording. (People v. MacEwing (1957) 155 Cal.App.2d 117, 127-128.) No diminution of the federal constitutional standard is shown.
Moving to Han’s claim that CALCRIM No. 376 erroneously and prejudicially allowed an “entirely illogical” inference, we reject this as well. Giving such instruction satisfies federal constitutional standards so long as there is “ ‘substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend’ ” (People v. Holt, supra, 15 Cal.4th at p. 677, citation omitted), and here it is beyond dispute that Han’s possession of the wicker bag and loot taken in the robbery in a search of his home four days later very strongly implied his involvement in the burglary, especially since he had been caught running from the house carrying the same (stolen) bag stuffed with property.
Han’s briefing, however, attempts to narrow the analysis as follows: “[Han] conceded that he stole property from the victims’ house. The only issue left for the jury to decide was when, not whether, he formed the intent to steal. The fact that [he] was in possession of property stolen from the house . . .does not make it any more likely that he formed the intent to commit theft before, rather than after, he entered the last room in the house that he occupied before leaving with the wicker bag. [¶] Because [his] possession of stolen property did not logically aid the jury in resolving the only disputed issue standing between them and a guilty verdict, the inference of guilt endorsed by CALCRIM No. 376 in this case violated the requirement that it must ‘more likely than not flow[] from the proved fact upon which it is made to depend.’ ” (Record cites omitted and quoting Ulster County Court v. Allen (1979) 442 U.S. 140, 166.)
We reject that analysis for several reasons. First, the instruction, when first given, was entirely proper and undisputed. We are cited no authority that this instruction, where otherwise fully supported, becomes erroneous once defense counsel, in closing argument, opts to contest only a narrow aspect of intent—here, not its existence, but its timing.
Second, Han does not explain how “undoing” the instruction would work, even if he is right that the probative link was “entirely illogical” once counsel conceded that an intent to steal existed at some point. The prosecutor presented his case, along with the evidence of Han’s possession of stolen property, clearly expecting that he had the usual burden to prove beyond a reasonable doubt every element of burglary, including the existence—not just timing—of a theft intent. By the time defense counsel, in closing, “conceded” the existence of the intent and shifted the focus to its timing, CALCRIM No. 376 had already been given, properly and without objection. Was the court now, on its own motion, somehow obligated to withdraw the instruction? Would such action itself risk error given that the instruction operates, in part, to protect a defendant against unfound inferences? Han does not explain.
Counsel hinted at, but came short of, such a concession in his opening statement, where he said the evidence would show “serious doubt” whether either defendant entered with an intent to steal and added vaguely as to his own client: “There is no dispute that certainly Mr. Han made an unfortunate decision. He exited the house. He was carrying Ms. Massoletti’s bag and did have some of the property in it.”
Third and finally, even if Han is right that his counsel’s “concession” rendered the connection between possessing stolen property and the timing of his intent too tenuous, he cannot show prejudice from the instruction. The instruction permitted, but did not require, drawing a guilt inference and told jurors to draw one, if at all, from all “relevant circumstances,” not just having the stolen property. We credit jurors with the common sense to recognize that possession of stolen property, if highly probative that Han harbored a theft intent at some point, had far less value in determining when the intent arose. Thus no error appears, by any standard. (People v. Mendoza (2000) 24 Cal.4th 130, 176-177 [more favorable result not reasonably probable]; People v. Smithey (1999) 20 Cal.4th 936, 978-979 [“no possibility” jurors were led not to find all elements beyond a reasonable doubt].) The evidence of Han’s guilt of burglary was also very strong, and we further rely on that fact, plus reasoning like that above, to find lack of prejudice. (People v. Prieto, supra, 30 Cal.4th at pp. 248-249 [error harmless where CALJIC No. 2.15 was given, in a case involving entry to commit rape, without limiting instruction to theft-related crimes].)
Neither error nor prejudice are shown.
C. Double Punishment
Han claims that he harbored a single intent for both the burglary and receiving stolen property and thus has been punished twice, in violation of section 654, requiring that sentence on count 2 be “stayed his pending completion of the sentence on the burglary count.” We agree with the People that the issue is premature. The court, in granting probation with a conditional 10 months of jail time, suspended imposition of sentence and thus never imposed a sentence for either count and gave us nothing to stay. In a case Han cites, the court had imposed judgment and suspended only its execution, leaving the issue ripe to decide (People v. Fry (1993) 19 Cal.App.4th 1334, 1340), but here the suspended imposition leaves us nothing to decide. (People v. Wittig (1984) 158 Cal.App.3d 124, 137; People v. Stender (1975) 47 Cal.App.3d 413, 424-425, abrogated on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 240.) “Probation is an act of grace and clemency designed to allow rehabilitation [citations] and is not within the ambit of the double punishment proscription of . . . section 654. [Citations.]” (People v. Stender, supra, 47 Cal.App.3d at p. 425.)
In his reply brief, Han disputes a backup argument that the People offer on the merits and urges us to decide it now, reasoning that the issue will arise “when and if probation is ultimately revoked . . . .” We decline for three reasons. First, Han may successfully complete probation, permanently mooting the issue. Second, new offenses attending a revocation of probation might moot the issue. Third, the existence of the People’s argument on the merits signals that reaching the issue now might improperly usurp the trial court’s fact finding role. We must defer to a trial court’s conclusion on the factual question of whether a defendant harbored multiple intents and uphold any finding that is supported by substantial evidence. (People v. Watts (1999) 76 Cal.App.4th 1250, 1264-1265.) The court here never made any such finding because it implicitly, and correctly, found no need to decide the issue.
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J. Richman, J.