Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. BA276786, Sam Ohta, Judge.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Deonte Andre Johnson ended a love triangle by putting one fatal bullet into his rival’s head. The jury convicted him of murder. Johnson says he did not get a fair trial because a threat poisoned the jury’s deliberation. The trial judge carefully investigated this threat, however, and properly contained the problem. Johnson also says the court sentenced him incorrectly, but this argument fails too. We therefore affirm, except we modify the judgment to eliminate the local custody credits to which Johnson was not entitled.
I
Every triangle has three sides. Johnson was one key actor: the shooter and thus the defendant at trial and the appellant here. Johnson’s rival and victim was Dewayne Herring. (Herring’s first name sometimes appears in the evidence as Dwayne or Wayne.) The woman at the apex of the triangle was Pinky Germany.
In the fall of 2003, Pinky Germany had been with Johnson for several months, but apparently also was seeing Herring.
Johnson and Herring did not much care for each other, and the neighbors knew it. They had watched Johnson and Herring face off in Germany’s front yard. Johnson said he was going inside Germany’s house to get his gun. That upset Herring, who replied in kind: “I have big heat.” Johnson went inside and Herring went to his car. Herring opened the trunk, equivocated, and then said, “Forget him. I’m not worried about him.” Herring said “Fuck it,” and drove off. Johnson came out gun in hand, but Herring was gone.
Things ended disastrously a few weeks later. Around midnight, as October 14, 2003 became October 15, Johnson shot Herring to death. Tarvanda Wall became a crucial eyewitness because she was in the middle of events that night. She socialized first with Herring, then with Johnson, and finally watched when Johnson reacted with murderous violence upon discovering Germany and Herring together.
For Wall, the evening began at Herring’s brother’s apartment. Wall was there with friends, but Herring’s brother came home and told everyone to leave. Herring dropped Wall and her cousin off at her house.
Wall and her cousin then met up with Johnson. They bought a bottle of wine, which they drank while sitting in a car outside Germany’s house.
Out of the house came Germany and Herring. Johnson saw Germany with Herring, said “hold on, cuz,” and got out of the car. Johnson “started beating up on [Germany].” Wall joined Herring on the porch. Herring said Germany’s mother was inside, and Herring told Johnson, “Don’t disrespect her mother’s house.” Johnson replied, “Fuck this shit.” Johnson said he was going to get his things out of Germany’s house. Germany followed him inside and locked the door.
Outside, Wall and Herring talked about what to do. Herring said he would leave and head for his brother’s apartment. Wall said she would go with him. Then Germany came out of the house and joined them as they walked down her driveway. Herring quizzed Germany, “What are you going to do?” “Are you going to be with him?”
Then Johnson came out of the house. He told Germany, “It’s going to be me or him.” Johnson started chasing Germany “because they started to fight again.” Johnson chased Germany around a truck, and they ended up back where they started.
Johnson said, “Man, fuck this,” pulled a gun, and shot Herring in the head. Herring died on the spot. Germany screamed, “Why did you do that?” Wall ran away “because I thought he was just going to turn around and kill me too.”
Wall gave the police this version in a videotaped interview on October 17, 2003. Wall said she told her mother she had seen a killing. Her mother told Wall, “You already know what to do . . . . Just find the strength and ask God . . . .” Wall “just talking to God every night” until she decided to tell Herring’s family members what she knew. These family members urged Wall to go to the police. Wall finally agreed. Herring’s brother and aunt drove Wall to the police station and waited there to drive her home.
An information charged Johnson with Herring’s murder. (Pen. Code, § 187, subd. (a), all further statutory references are to the Penal Code.) The information also charged Johnson with related gun enhancements. (§ 12022.53, subds. (b) (c) and (d).)
At trial, Wall was a reluctant witness. She ignored a subpoena and did not appear in court. The court had her arrested to secure her presence. On the witness stand, Wall’s reluctance became even more pronounced. Wall admitted she had made these statements to the police. She had no alternative. After all, she was on tape. She did admit she told police Johnson was the shooter. But Wall told the jury her taped statements to police were lies: she had been threatened by Herring’s family members, who told her what to say. Wall said Herring’s brother told her she “would end up” like Herring if she did not tell police Johnson had been the shooter. Wall said she took this as a death threat. Other members of Herring’s family also had threatened Wall to get her to say Johnson shot Herring, she claimed. Wall felt especially threatened after someone set Germany’s house on fire.
The jury acquitted Johnson of first degree murder and found him guilty of second degree murder. The court sentenced Johnson to an aggregate term of 40 years-to-life. Johnson appeals.
II
A
After the jury began deliberations, a child spoke to an alternate juror sitting in the hallway. It appears the parties now agree this child was a boy with long hair, but the alternate juror apparently assumed the child was a girl. In any event, the alternate juror understood the child to say that Johnson was this child’s big brother and that family members would come after the jury if it convicted Johnson. The court learned of the threat. It held an evidentiary hearing to determine the extent of the jury taint. With counsel present, the court individually interviewed each juror and alternate juror. After the first interview, the court conferred with counsel at sidebar. The court made clear to counsel that it was interested in suggestions and comments from counsel. At the conclusion of the entire hearing, the court heard argument and determined the evidence rebutted the presumption of prejudice as to all jurors and alternate jurors, with the exception of one alternate juror and two jurors. The court accordingly excused these three, replaced the jurors with alternate jurors, and told the jury to begin deliberations anew.
Johnson contends the court did not go far enough. He says his trial was unfair because other affected jurors remained on the panel. The People counter the trial court thoroughly considered the situation and correctly resolved it. We have reviewed the record in depth and agree with the People.
B
1
The court first interviewed the presiding juror —Juror 9. Juror 9 said Alternate 1 told her Johnson’s sister had talked to her in the hallway and said that if the jury finds Johnson guilty the family would come after them. Juror 9’s discussion with Alternate 1 was in the hallway. Juror 8 was present. No one else was around. Juror 9 did not discuss the matter further and asked no questions. Alternate 1 pointed out the person who had talked to her. Juror 9 said the person was a young African-American girl around 11 or 12 years old. Juror 9 did not take the matter too seriously because the person identifying herself as Johnson’s sibling was just a child.
The threat did not worry Juror 9. She told the court she would not attribute anything negative to Johnson because of the incident, it would not affect her ability to fairly evaluate the evidence, and she would not consider the family member’s conduct when deliberating Johnson’s case.
2
The court interviewed Juror 8 next. Juror 8 confirmed she was with the presiding juror when Alternate 1 told the presiding juror that Johnson’s sister had approached her. As Juror 8 remembered it, Alternate 1 said Johnson’s sister said she was worried she would never see her brother again if the jury found him guilty. The comment included the threat that, if the jury found Johnson guilty, the family was “going to run after us.” Only Jurors 8 and 9 were present for this discussion in the hallway. No one else was close enough to hear.
Juror 8 thought the situation “kind of scary.” She became fearful and worried something could happen to her while driving home from court. Juror 8 felt somewhat threatened. She later shared the information and her thoughts with Juror 7.
In the deliberation room, Juror 8 urged the presiding juror to tell the bailiff and court what they had learned from Alternate 1. Juror 8 did not use the word “threat” in the deliberation room. She just reminded the presiding juror to tell the bailiff or court about what they had heard that morning.
Juror 8 claimed the incident would not affect her judgment. She said she believed she was able to be fair and unbiased in deciding the case.
3
The court now knew Juror 7 had been exposed to the information. It interviewed Juror 7 next. Juror 7 heard about it from Juror 8 over the lunch hour. Some other female juror was with them when Juror 8 relayed the story.
As Juror 7 heard it, the comment was, if the jury did not do something with her “cousin,” “‘we’re going to follow you home.’” Juror 7 interpreted this as a threat. Juror 7 said it made her really scared to think she might be followed home. Juror 7 heard a little girl had made the comment. Because there had been so many of the victim’s family members in the courtroom, Juror 7 linked the child with the victim’s family.
Juror 7 later mentioned to another juror that the proceedings might be delayed over concern for the jurors’ security. This other unnamed juror made no comment and asked no questions.
On reflection, Juror 7 said she was no longer concerned. She said she believed she could be fair and could limit her consideration of the case to the evidence presented in court.
4
The court determined it was necessary to interview all the other jurors and alternates to determine the extent of the taint. The court started with Juror 1.
The jurors were in the deliberation room when Juror 1 overheard Juror 7 say something about someone having been threatened. Juror 1 asked who had been threatened and learned it had been Alternate 1. Juror 1 stated he/she was not concerned. The juror explained he/she felt confident the bailiff or the court would take care of the jurors. Juror 1 assured the court he/she could put the matter aside and consider only the evidence presented at trial when considering Johnson’s guilt or innocence.
5
Juror 2 heard nothing.
6
Sometime during the lunch period, Juror 7 told Juror 3 that Alternate 1 had been threatened. Juror 8 was with them. They did not discuss the threat at length. Juror 7 appeared frightened. Juror 3 had no idea who had made the threat and did not know whether the person was associated with the defense or prosecution. Juror 3 said it was not important who had made the threat. Juror 3 did not feel very threatened and was not sure whether an actual threat occurred. Juror 3 agreed she could set aside what she had heard and decide the case on the law and the facts presented at trial.
7
Juror 4 overheard Juror 8 reminding the presiding juror to tell the bailiff what had occurred with Alternate 1. Another juror overheard Juror 8’s comment and asked for an explanation. Some other juror said a family member said something to an alternate juror in the hallway. Juror 4 assumed, if something was said, it was meant to influence the outcome of the case. Juror 4 had not been concerned at all, and did not become concerned until he/she was called into the courtroom. Juror 4 said there had been so many family members in the courtroom he/she had no idea which side might have made the comment. The juror assured the court he/she could put the matter aside and decide the case based solely on the evidence presented at trial.
8
Juror 5 had a general idea someone outside the courtroom had threatened someone about the jury’s verdict. Juror 5 had made no assumption, and did not know, which side had made the comment. Juror 5 said, if he had to assume, he would assume such a comment would probably come from the defense side. Juror 5 confirmed he had made no assumption one way or the other but thought the court was requiring him to make an assumption. Juror 5 had not heard the entire story and was not concerned for his safety. Juror 5 was “most definitely” able to disregard the information and to decide Johnson’s guilt or innocence based solely on the evidence presented at trial.
9
Juror 6 heard nothing.
10
Juror 10 knew something about the threat. After lunch Juror 7 told her they were going to report to the bailiff that one of the alternate jurors had been threatened by a young girl who had been selling candy in the hallway. Juror 10 did not make any assumptions regarding the young girl’s association. Juror 10 asked no questions because she knew the incident was going to be reported to the bailiff. Juror 10 was not concerned in any way for her safety.
11
Juror 11 heard nothing about a communication with a nonjuror.
12
When the jurors broke for lunch, Juror 12 overheard two jurors say they needed to tell the judge about something about their security. When Juror 12 asked them to explain, the other jurors refused. After lunch the jurors assembled in the deliberation room. When the court summoned the presiding juror, some of the remaining jurors wanted to know why. One of the jurors told Juror 12 and a few other jurors that a 12-year-old girl had threatened Alternate 1. Juror 12 learned the child was a family member. Juror 12 had not assumed the child was associated with any particular side. Juror 12 stated, if he assumed anything at all, he assumed it was “stupid” for either side to do such a thing. Juror 12 said he was concerned for his safety, but not so concerned it would affect his impartiality. Juror 12 assured the court he would not consider the incident in determining guilt or innocence. Juror 12 stated he was able to decide the case based on the evidence and law presented in court.
13
The court next interviewed the alternate jurors, starting with Alternate 1. Alternate 1 said after the jurors retired to deliberate she sat on a bench in the hallway to wait. A young girl sitting on the next bench spoke to her. The girl said, “‘I hope this isn’t the last Christmas I get to spend with my big brother.’” Alternate 1 responded, “‘Death penalty isn’t an issue, but I do not know where he’ll be next year and I can’t talk to you.’” The child said, “‘I’m Deonte’s younger sister and I’m 12.’” The child then told Alternate 1, “‘I hope you make the right decision; otherwise, my family is going to come after you.’”
Alternate 1 claimed she had mentioned this story to only one other juror. It did not occur to her to report the incident to the bailiff or to the court. She was not concerned for her safety both because the child was only 12 and because she was only an alternate and not responsible for the jury’s verdict. Alternate 1 agreed her view might change if she became a regular juror. She said she might be more scared, and could possibly be biased.
14
Alternates 2 and 3 knew nothing about any communication.
15
The court called all of Johnson’s and Herring’s family members into the courtroom. The court directed each person to identify him or herself on the record. The court reminded them each side had the right to a fair trial. It ordered the family members not to contact any juror or alternate juror and made each person confirm he or she understood and would abide by its order. The court informed the family members it had the power to, and would, enforce its order, either by removing them from the courtroom, or by contempt punishable by fine or jail.
16
The court concluded the family member’s attempt to tamper with the jury raised a presumption of prejudice and invited counsels’ argument on the issue whether the presumption had been rebutted.
Defense counsel moved for mistrial. The defense attorney said, “I admit the court did a very good job of talking to these people, admonishing them not to continue to talk about it.” Nevertheless, defense counsel argued Alternate 1, Juror 7, and Juror 8 showed bias because of fear. Defense counsel thought these two jurors should be removed and the alternate excused. Defense counsel also thought the evidence had not rebutted the presumption for Juror 5 because he said he assumed the threat had come from the defense side.
The prosecutor agreed Alternate 1 and Jurors 7 and 8 should be excused. The prosecutor disagreed Juror 5 had assumed the threat came from the defense. The prosecutor stated Juror 5 said he had not made any assumption and only offered a guess when he thought the court was pressing him to make an assumption.
The court then gave its own assessment. The court noted every juror stated he or she was not tainted by the threat with the exception of Alternate 1. All the other jurors said they could put the threat out of their mind. All jurors also said they would follow the law and decide the case based solely on the evidence presented at trial. Each juror promised not to relate his or her discussion with the court to others. Thus, the threat tainted no juror, judging by their words. However, the court stated it looked each person in the eye when questioning each juror. When the juror responded, the court assayed the person’s body language, tone of voice, and demeanor to determine whether the person’s responses were honest and sincere.
The court concluded Alternate 1 disqualified herself by her words alone. When pressed, she conceded the threat might bias her.
Juror 7 said she could be fair and unbiased but the court said it did not believe her. Juror 7 seemed very frightened and the court’s concern was this fear might affect her judgment. Juror 8, the court said, presented a similar situation. Juror 8 said she could be fair. She said she would not be biased and could set aside her knowledge of the incident. However, the court was not persuaded. The court thought Juror 8 seemed fearful and very affected by the threat.
Based on these observations, the court removed Jurors 7 and 8 and Alternate 1 for cause. (§ 1089 [a sitting juror may be removed for cause when the record shows as a demonstrable reality the juror is unable to perform the functions of a juror].)
The court said the other jurors demonstrated no fear. The court said it paid particular attention to each person’s body language and to the intonation of each person’s voice to determine whether everyone’s behavior fit their words. Based on these observations, the court determined the threat had not tainted the remaining jurors and alternates.
The next morning, defense counsel moved for mistrial again. Defense counsel argued the threat tainted Juror 12 because he expressed concern for his safety. The court disagreed. The court commented Juror 12 said he had concerns, but no more than would anyone learning about a threat. The court recalled Juror 12 “kind of laughed about it when he said that he wasn’t frightened. He kind of smiled at [the court] and laughed as [they] talked further, he indicated that he could set that aside and be fair in the trial.”
The court again denied the motion for mistrial. The court excused Alternate 1. The court excused Jurors 7 and 8 and replaced them with Alternates 2 and 3. The court admonished the newly constituted jury not to discuss the matter with anyone while the case was still pending, to put the event out of their minds during the deliberation process, and not to speculate why certain jurors had been removed. The court individually polled the jurors to ensure they understood and agreed to comply with the court’s directives. The court instructed the jurors to begin their deliberations anew.
C
1
The parties do not cite authorities involving review of trial court findings after a mid-trial evidentiary hearing on the effect of jury tampering on deliberating jurors. Some guidance, however, is available.
“In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, . . . ” (Remmer v. United States (1954) 347 U.S. 227, 229 [attempted bribery of jury foreperson].) When jury tampering occurs, the remedy is “a hearing with all interested parties permitted to participate.” (Id. at p. 230; accord, United States v. Angulo (9th Cir. 1993) 4 F.3d 843, 847 [“In cases where a bribe or a threat to a juror was communicated to the other jurors, the trial judge must fully examine the effect of the threat on the remaining jurors.”]; United States v. Henley (9th Cir. 2001) 238 F.3d 1111, 1116 [“the court erred in basing its decision on the ‘overwhelming evidence’ of appellants’ guilt rather than considering the effect of the bribery attempt on the course of deliberations.”].)
The rules are the same in California. “Misconduct by a juror, or a nonjuror’s tampering contact or communication with a sitting juror, usually raises a rebuttable presumption of prejudice.” (People v. Danks (2004) 32 Cal.4th 269, 302, internal citations and quotation marks omitted.) Thus, “[a] sitting juror’s involuntary exposure to events outside the trial evidence, even if not ‘misconduct’ in the pejorative sense, may require [] examination for probable prejudice. Such situations may include attempts by nonjurors to tamper with the jury, as by bribery or intimidation.” (In re Hamilton (1999) 20 Cal.4th 273, 294-295, citations omitted.)
The question whether jury tampering or jury misconduct prejudiced the jurors is a mixed question of law and fact subject to an appellate court’s independent determination. (People v. Danks, supra, 32 Cal.4th at p. 303.) However, an appellate court accepts the “trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.” (Id. at p. 304, citation and quotation marks omitted.) The “presumption of prejudice may be rebutted, inter alia, by a reviewing court’s determination, upon examination of the entire record, that there is no substantial likelihood that the complaining party suffered actual bias.” (Id. at p. 303, citation and quotation marks omitted.)
The court in the present case held the necessary evidentiary hearing. The court thoroughly examined each juror and alternate for potential prejudice. The court removed jurors tainted by the threat and retained those who were unaffected. Nevertheless, Johnson claims one or more affected jurors remained on the panel. He points out Jurors 5, 12, 1, 3, 4, 9, and 10 were aware of a threat. In addition, he argues, Juror 5 assumed the threat had come from the defense, and Juror 12 expressed concern for his safety. Johnson claims these jurors were probably biased and thus the judgment must be reversed because he was deprived of his right to the unanimous verdict of 12 impartial jurors. (Citing In re Hamilton, supra, 20 Cal.4th 273, 294; People v. Holloway (1990) 50 Cal.3d 1098, 1112.)
2
Johnson argues the threat actually biased Juror 5, but the record does not support this notion. Juror 5 knew someone had made a threat so as to influence the jury’s decision. Contrary to Johnson’s argument, Juror 5 had made no assumption whether the threat had come from the defense or prosecution side. Juror 5 erroneously thought the court had directed him to make an assumption. Juror 5 said he did not know where the threat originated, but “[i]f [he] had to assume, [he] would assume the defense.” The trial court later commented that the way the court had asked the question had caused a misunderstanding.
In addition, Juror 5 told the court he was not concerned for his safety. Juror 5 said he “most definitely” could put the whole matter aside. In making its ruling the court said it looked each juror in the eye and observed each person’s demeanor to decide whether the words fit the person’s behavior. The court concluded the evidence rebutted presumption of prejudice for Juror 5. There is no reason to disturb this conclusion.
The court reached the same conclusion about Juror 12. That juror said he was concerned for his safety, but was not overly concerned. This juror also said he was not so concerned that the episode would affect his impartiality as a juror. The juror had made no assumption which side had made the threat. Juror 12’s only opinion on the subject was that he thought it would be stupid for anyone to try to influence the outcome of a case. The court later recalled that Juror 12 “kind of laughed about it when he said that he wasn’t frightened. He kind of smiled at [the court] and laughed as [they] talked further, he indicated that he could set that aside and be fair in the trial.” This combination of the juror’s actual statements and the court’s assessment of the juror’s demeanor supports the court’s conclusion. We affirm the court’s conclusion that the evidence rebutted the presumption of prejudice about Juror 12.
Johnson makes no specific argument about the remaining jurors. None expressed fear from the threat, or any safety concerns at all. Each agreed to put the whole matter aside during deliberations. Each disclaimed bias; each affirmed an ability to be fair. The trial court listened, watched, and made credibility findings favoring each of these jurors. Substantial evidence supports the court’s ruling. (People v. Danks, supra, 32 Cal.4th at p. 304.)
In sum, the trial court did exemplary work. It correctly found the evidence rebutted the presumption of prejudice about the jurors who remained on Johnson’s case. There is “no substantial likelihood that the complaining party suffered actual bias.” (People v. Danks, supra, 32 Cal.4th at p. 303.)
III
The trial court sentenced Johnson to a term of 15 years-to-life for the second degree murder conviction. (§ 190, subd. (a).) The court also imposed an additional and consecutive term of 25 years-to-life on the jury’s finding that Johnson personally and intentionally discharged a firearm causing death. (§ 12022.53, subd. (d).) Johnson contends the firearm enhancement of 25 years-to-life violates principles of double jeopardy and section 654’s prohibition on multiple punishment for the same act or omission.
The Supreme Court’s decision in People v. Palacios (2007) 41 Cal.4th 720 counters Johnson’s sentencing argument. The Palacios court held section 654 did not preclude multiple firearm enhancements under section 12022.53. (Id. at pp. 727-728 [“We are persuaded that, in enacting section 12022.53, the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654.”].)
The Supreme Court also has rejected Johnson’s double jeopardy argument. (People v. Izaguirre (2007) 42 Cal.4th 126, 130-134 [holding a section 12022.53 enhancement to a murder conviction does not implicate double jeopardy principles], cert. den. sub. nom. Izaguirre v. California (2008) ___ U.S. ___, 128 S.Ct. 1111.)
Johnson’s attack on the additional punishment imposed for the firearm enhancement under section 12022.53 thus has no basis.
IV
The court correctly imposed the applicable section 12022.53, subdivision (d) enhancement of 25 years-to-life on the murder conviction based on the jury’s finding he intentionally and personally discharged a firearm causing death. The court then imposed and stayed execution of the 10-year term under section 12022.53, subdivision (b) and the 20-year term under section 12022.53, subdivision (c).
Johnson contends the court was required to strike, rather than stay execution of, the additional enhancements the jury found true under section 12022.53, subdivisions (b) and (c). Johnson acknowledges the issue whether a lesser enhancement under section 12022.53 should be stricken or stayed is currently pending before the California Supreme Court. (People v. Gonzales (review granted March 14, 2007 (S149898) [argued and submitted on March 6, 2008].)
Division Four of this court rejected Johnson’s argument in People v. Bracamonte (2003) 106 Cal.App.4th 704. The Bracamonte court held any duplicative enhancements under section 12022.53 must be imposed and stayed. (Id. at p. 713.) The court reasoned the mandate in section 12022.53, subdivision (h) prohibiting the striking of additional enhancements required a court to impose, but stay, the lesser punishment. (Ibid.; accord, People v. Carrasco (2006) 137 Cal.App.4th 1050, 1061-1062.)
Following Bracamonte, we conclude the trial court did not err in staying rather than striking the lesser firearm enhancements found true under section 12022.53.
V
The trial court awarded Johnson presentence custody credits that included credits for good time/work time. The People contend Johnson was not entitled to custody credits beyond credit for actual time served. They request the judgment be modified to strike the 160 days Johnson received for local conduct credit.
Section 2933.2 directs anyone convicted of murder may not accrue or earn good time/work time custody credit. Johnson concedes the trial court awarded him 160 days in good time/work time custody credits in error. Johnson acknowledges section 2933.2 prohibits local conduct custody credits for anyone convicted of murder. We agree and modify the judgment accordingly. (People v. Scott (1994) 9 Cal.4th 331, 354 [an appellate court is authorized to correct an unauthorized sentence].)
VI
The cause is remanded to the superior court with directions to prepare a new abstract of judgment striking the 160 days of local conduct credits, and to forward the modified judgment to the corrections officials. As so modified, the judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.