Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 03NF0976 Robert R. Fitzgerald, Judge. (Retired judge of the Orange County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez, Theodore M. Cropley and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Hermilio Martinez of attempted voluntary manslaughter and assault with a semiautomatic firearm. The jury also found to be true allegations defendant inflicted great bodily injury to the victim (Pen. Code, § 12022.7; all statutory references are to this code unless otherwise noted) while personally using a firearm for the benefit of a criminal street gang (§§ 12022.5, subd. (a), 186.22, subd. (b)(1)(A)). He challenges the sufficiency of the evidence to support the gang enhancement and argues the trial court erred in responding to a jury question concerning the meaning of great bodily injury. Defendant also argues the court’s imposition of aggravated terms for assault and for a gun enhancement violated his right to a jury trial (see Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham)), and the court erred in charging him for probation department costs. Finding no basis to overturn the judgment,
I
Factual and Procedural Background
On March 19, 2003, defendant, Benny Pena, Gonzalo Lopez, and Lopez’s former girlfriend drove to an Anaheim residence to purchase marijuana. Lopez parked on La Plaza Street and the three men stayed in the car while Lopez’s girlfriend left to buy the marijuana. While they waited, Pena, a West Side Anaheim gang member, mentioned that a rival Anaheim street gang named “Citron” had a “green light.” According to the prosecution’s gang expert, Detective Charles Sullivan, this meant West Side Anaheim gang members could attack Citron gang members on sight.
A short time later, Jose Landa passed the group on his bicycle. Pena identified Landa as a Citron member and got out of the car to chase him, but Landa did not stop or look back as he sped out of sight. Several minutes later, Landa returned, stopping about five feet from Pena. Pena yelled at him, “‘[W]here you from?’” Clearly angry, Landa replied, “‘[Y]ou know where I’m from.’” At this point, defendant ran towards Landa until he was about seven feet away and asked “where are you from?” No one saw anything in Landa’s hands, and he did nothing to threaten or provoke the others. Defendant removed a small, black, .22 caliber semiautomatic handgun and fired three or four gunshots. Defendant and the others ran back to the car and drove away. An officer later found Landa on the ground with two gunshot wounds to his abdomen and one to his right forearm. Paramedics transported Landa to the hospital for surgery. The surgeon removed a spent bullet from Landa’s body and turned it over to investigators. Officers at the scene found four cartridge casings and blood on the ground.
Lopez parked about a mile away and the three men ran off separately. Lopez called 911 and reported his car had been stolen at gunpoint. Police officers responding to his residence did not believe his account and detained him for questioning. Lopez eventually confessed and was arrested for being an accessory to the crime.
Defendant spoke with officers a day or two after the incident. He admitted knowing Pena belonged to West Side but denied he belonged to a gang. Defendant claimed Pena and Lopez directed him to shoot Landa, and threatened to call him a “ranker” if he declined. According to Sullivan, a “ranker” is a person who does not stand up for his gang.
Officers found a shoebox in defendant’s room with the letters “WAR” written on it. Sullivan explained WAR stood for “West Side Anaheim Refa.” “Refa” meant “ruler” or “the best,” a term gangs often used to indicate supremacy over other gangs. Sullivan opined defendant belonged to West Side and shot the victim for the benefit of, and in association with, the West Side Anaheim criminal street gang.
The jury convicted defendant of attempted voluntary manslaughter as a lesser included offense of attempted murder (count 1) and assault with a semiautomatic firearm (count 2). The jury also found defendant personally used a firearm (§ 12022.5, subd. (a)), inflicted great bodily injury (§ 12022.7, subd. (a)), and committed the offenses in association with a criminal street gang (§ 186.22, subd. (b)(1)). The court selected count 2 as the principal term and imposed the nine-year aggravated term. It imposed a consecutive aggravated 10-year term for use of a firearm, a consecutive 10-year term for the gang enhancement, and a consecutive three-year term for the great bodily injury enhancement. The court stayed (§ 654) the term and enhancements related to count 1. The aggregate prison sentence totaled 32 years.
II
Discussion
A. Substantial Evidence Supports the Gang Enhancement
Defendant challenges the sufficiency of the evidence to support the gang enhancement. Specifically, he argues the prosecution failed to show that one of West Side’s primary activities was the commission of one or more statutorily enumerated criminal acts. We disagree.
Section 186.22, subdivision (b)(1), provides for a 10-year enhancement where the current offense is a violent felony (§ 667.5) and the felony is “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” Subdivision (f) defines “‘criminal street gang’” as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of [listed] criminal acts[, . . . having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.” (Italics added.)
The list of acts is lengthy and includes assault with a deadly weapon or by means of force likely to produce great bodily injury, robbery, unlawful homicide or manslaughter, possession of a pistol, revolver, or other firearm capable of being concealed upon the person, ex-felon in possession of a firearm, carrying a concealed firearm, and carrying a loaded firearm in violation of section 12031.
The phrase “primary activities” means the group’s chief or principal occupation is the commission of one or more of the statutorily enumerated crimes; the term excludes occasional commission of such crimes by the group’s members. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324.) Evidence of the group’s past offenses and the circumstances of the charged crime are both admissible on the issue of the group’s primary activities. (Id. at p. 323.) Expert testimony concerning the group’s activities may furnish substantial evidence showing “the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute.” (Id. at p. 324, original italics; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1004-1005.)
Sullivan testified that he had interviewed more than 3,000 self-admitted gang members, including West Side Anaheim gang members. Sullivan also had investigated crimes involving West Side members as victims, suspects, and witnesses. He explained West Side started as car club in the 1950’s, but evolved into a “full fledged Hispanic street gang.” The 75-80 member gang had enemies, including gang-rival Citron. It claimed boundaries in the central portion of Anaheim. Asked “[a]s of [the date of the current offense], what was a primary criminal activity in the West Side Anaheim Gang?” Sullivan responded, “I investigated crimes involving West Side gang members of homicide, attempt homicide, weapons possession, felony vandalism and robberies.” Sullivan testified West Side member Louis Carrillo suffered a juvenile adjudication for possessing a concealable firearm in August 2000, and West Side gang member Gilbert Romo suffered an adjudication for unlawful vehicle taking (Veh. Code, § 10851) in November 1999. Sullivan, based on his training, education, and experience as a gang investigator, concluded that on the date of the offense West Side Anaheim operated as a criminal street gang.
Defendant argues Sullivan’s testimony he had “‘investigated crimes’” fell “far short of constituting substantial evidence of crime as a ‘primary activity.’” According to defendant, “[n]othing in his testimony indicated that he had investigated any more than ‘the occasional commission of [enumerated] crimes by the group’s members’ that our Supreme Court has declared insufficient to establish primary criminal activity.”
Although the expert did not expressly state one of West Side’s primary activities was the commission of the predicate crimes listed in section 186.22, the expert provided ample evidence to support the jury’s conclusion. Based on his experience, training and education, Sullivan testified West Side qualified as a criminal street gang. He based his opinion on his personal knowledge and experience with West Side and its history, information obtained in numerous interviews with gang members, including West Side, and the investigation of 800 to 1,000 gang incidents, including crimes involving West Side gang members. The expert’s investigation of crimes involving West Side gang members for “homicide, attempt homicide, weapons possession, felony vandalism and robberies” supports the jury’s conclusion these crimes constituted a primary activity of the gang. (See People v. Gardeley (1996) 14 Cal.4th 605, 620 [expert’s opinion based on interviews with the defendant and his cohorts and expert’s “personal investigations” of gang crimes constituted substantial evidence to support gang enhancement].)
Defendant’s reliance on People v. Perez (2004) 118 Cal.App.4th 151 is distinguishable. There, the prosecution failed to present any expert testimony to support the principal activities requirement, and the only prior bad act testimony related to activity over a short period of time. (Id. at p. 160.) Here, as discussed above, the prosecutor’s expert provided a substantial basis for the jury to infer a primary activity of West Side was the commission of the enumerated offenses. In sum, substantial evidence supports the gang enhancement.
B. The Court’s Response to the Jury’s Question Concerning Great Bodily Injury Constituted Harmless Error
The court instructed the jury with CALJIC No. 17.20, which defines great bodily injury as “a significant or substantial physical injury,” and specifies that “[m]inor, trivial or moderate injuries do not constitute great bodily injury.” During deliberations, the jury submitted a written request for “the definition of substantial & significant as pertains to great bodily injury. . . .” The trial court proposed repeating the original jury instruction, and adding the following: “The intentional application of a hot knife which burned the victim’s shoulder in another case has been held to be a substantial and significant act constituting great bodily injury.”
The court’s example was apparently drawn from People v. Farmer (1983) 145 Cal.App.3d 948 (Farmer). In Farmer, the defendant kidnapped his former girlfriend and assaulted her with a hot knife, severely burning her shoulder. On appeal, the reviewing court rejected the defendant’s attack on the sufficiency of the evidence, explaining: “[Jurors] saw photographs of the injuries taken at the time of the preliminary examination and heard the victim’s description of them. We have also seen those photographs. We cannot say that the finding was without support in the record.” (Id. at p. 951.)
Defense counsel in the current matter objected the proposed response improperly raised facts outside the record, and complained the clarification would have the effect of directing a guilty verdict because most people would consider gunshot wounds more significant than a burn. Defense counsel also requested the court provide the jury with additional examples on both sides of the issue. The court overruled the objection and gave its supplemental instruction.
The court has a duty to help the jury understand the legal principles it is asked to apply, but it need not elaborate on standard instructions. (People v. Beardslee (1991) 53 Cal.3d 68, 97; § 1138.) Comments diverging from the standard instructions must be crafted with care. The court must balance the need to promptly respond to a jury’s question with a reply that is “accurate, responsive and balanced” and that does not suggest an answer or in any way usurp the jury’s fact finding function. (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.)
The term “‘great bodily injury’” has been used in the law of California for over a century without further definition and reviewing courts have consistently held that it is not a technical term. (People v. Escobar (1992) 3 Cal.4th 740, 750, fn. 3; People v. La Fargue (1983) 147 Cal.App.3d 878, 886-887; People v. Kimbrel (1981) 120 Cal.App.3d 869, 876.) The legislative history of section 12022.7 reveals the Legislature specifically declined to list examples of the type or level of injury necessary to trigger the three-year enhancement. (Escobar, supra, 3 Cal.4th at p. 747 [apparent intent was to preclude the possibility that the specific examples listed would be construed to exclude other types of injury not expressly enumerated].) Whether the victim’s injuries constitute great bodily injury is a question of fact for the jury. (People v. Wolcott (1983) 34 Cal.3d 92, 107; People v. Salas (1978) 77 Cal.App.3d 600, 606.)
Applying the foregoing principles, we conclude the trial court erred in fashioning its response to the jury’s request for a definition of the terms “substantial and significant” as it pertained to great bodily injury. In referring to the evidence and decision of another case, the trial court failed to provide a responsive, accurate, and balanced supplemental instruction.
The court’s supplemental instruction was non responsive because it provided a factual illustration of what another court found to be great bodily injury, but failed to answer the jury’s request to define specific terms. A court may instruct only on points of law; factual instructions are prohibited. (People v. Santos (1990) 222 Cal.App.3d 723, 746; §§ 1093, 1127.)
The supplemental instruction was inaccurate and misleading because it informed the jury that the decision of another fact finder established a template for determining whether the injuries in the present case had been proven beyond a reasonable doubt. This constituted error because the other case referred to in the instruction based its decision on an appellate standard of review that differed from the beyond a reasonable doubt standard the jurors were duty bound to follow. On appeal, the appellate court presumes in support of the judgment the existence of every fact the jury could have deduced from the evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) The fact the circumstances could be reconciled with a contrary finding does not warrant reversal. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Consequently, an appellant “bears an enormous burden” when challenging the sufficiency of the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) In contrast, the jury must acquit the defendant if there is a reasonable doubt, and the burden is placed on the prosecution to prove guilt. Farmer, from which the trial court patterned its instruction, illustrates the difference in the two standards. In rejecting the defendant’s challenge to the sufficiency of the evidence. Farmer merely determined substantial evidence supported the verdict, explaining it could not “say that the jury’s finding was without support in the record.” (Farmer, supra, 145 Cal.App.3d at p. 951.) Simply put, a particular appellate court decision finding substantial evidence supported the verdict in its case has no relevance for a deliberating jury in a criminal trial.
The instructional error is harmless, however, even assuming the Chapman v. California (1967) 386 U.S. 18 (Chapman) standard applies. In essence, the test is whether it is conceivable “the jury, without receiving the erroneous instruction, would have concluded [the victim] did not sustain ‘great bodily injury.’” (People v. Beltran (1989) 210 Cal.App.3d 1295, 1308.) Here, the victim suffered two gunshot wounds to his abdomen and one to his right forearm. An officer found the victim lying on the ground and responding paramedics transported the victim to the hospital for emergency surgery. The surgeon provided investigators with the spent bullet removed during surgery, and the jury observed a photo of the bandaged victim in the hospital. It is inconceivable a reasonable jury would conclude abdominal gunshot wounds requiring emergency surgery were insignificant or insubstantial. Accordingly, the trial court’s erroneous supplemental instruction was harmless beyond a reasonable doubt. (Chapman at p. 24.)
C. Defendant’s Aggravated Sentence Did Not Violate His Right to a Jury Trial
The trial court imposed the aggravated term of nine years for the assault with a semiautomatic firearm charged in count 2 (§ 245, subd. (b)), citing defendant’s status as a juvenile probationer. It also imposed the upper term of 10 years on the personal use enhancement (§ 12022.5, subd. (a) [“Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense”]), stating it was selecting the upper term because “defendant has three prior [adjudications] as a juvenile and they are increasingly of a serious nature.”
Defendant was 18 years old when he committed the current crimes and age 20 at sentencing. His prior record as a juvenile included possession of a concealable firearm and ammunition at school (1999: age 14), carrying a loaded firearm in public, possession of a controlled substance, possession of a drug pipe, and driving without a license (April 2002: age 17), and bringing contraband (marijuana) into a juvenile facility (June 2002: age 17). The current crimes occurred about six months after defendant had been released from a juvenile camp.
Relying on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny, defendant contends the trial court violated his Sixth Amendment right to a jury trial by imposing upper terms on his conviction for assault with a semiautomatic firearm and the enhancement for using a gun to benefit a criminal street gang. In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury’s verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303.) In Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court reviewed California’s determinate sentencing law and concluded the middle term was the relevant statutory maximum, explaining, “‘[T]he relevant “statutory maximum,”’ . . . ‘is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.’” (Id. at p. 860, original italics.)
Following the Cunningham decision, the California Supreme Court in People v. Black (2007) 41 Cal.4th 799, 816 (Black II) explained that “ imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” Where no aggravating fact relied upon by the trial court is established by one of these recognized means, imposition of the upper term sentence violates the Sixth Amendment. (See People v. Sandoval (2007) 41 Cal.4th 825, 843, original italics [Sixth Amendment prohibits trial court from determining whether crime involved “‘high degree of cruelty, viciousness or callousness’ . . . on defendant’s part”].)
Here, defendant’s recidivism alone “render[ed] him eligible for the upper term.” (Black II, supra, 41 Cal.4th at p. 820.) Additionally, the Supreme Court in Black II concluded the exception to jury fact finding maintained in Apprendi through Cunningham for recidivism extends to the recidivism-related question of whether the prior convictions are “numerous or of increasing seriousness.” (See Cal. Rules of Court, rule 4.421(b)(2)); Black II, supra, 41 Cal.4th at pp. 819-820.)
In a supplemental brief, defendant asserts his juvenile adjudications do not fall within the prior conviction exception under the Apprendi line of cases because juveniles are not entitled to a jury trial in juvenile proceedings. Defendant argues “the fact of a juvenile adjudication” is “an improper basis to extend his criminal sentence beyond the statutory maximum because such an adjudication was not made pursuant to a jury trial or a waiver thereof.”
Defendant relies on United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe) to support his argument. There, the Ninth Circuit limited Apprendi’s prior conviction exception “to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendi’s ‘prior conviction exception.’” (Tighe, at p. 1194.) We find Tighe unpersuasive.
Defendant also relied on People v. Nguyen (2007) 152 Cal.App.4th 1205, but after defendant filed his supplemental brief, the California Supreme Court granted review (review granted Oct. 10, 2007, S154847), thereby negating its precedential value.
In McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545, the United States Supreme Court held that due process did not require a jury trial in juvenile proceedings. Because a juvenile court may constitutionally and reliably adjudicate a delinquency matter without providing the minor a jury trial, it follows that there is no constitutional impediment to the subsequent use of the juvenile adjudication to enhance an adult offender’s sentence. As the dissent in Tighe explained: “Congress has the constitutional power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant presumably received all the process that was due when he was convicted of the predicate crime. For adults, this would indeed include the right to a jury trial. For juveniles, it does not. [W]hen a juvenile receives all the process constitutionally due at the juvenile stage there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement.” (Tighe, supra, 266 F.3d at p. 1200 (dis. opn. of Brunetti, J.).)
The majority of courts to consider the issue reject the reasoning of the Tighe majority, “including every California appellate court besides the Sixth Appellate District in Nguyen and every federal appellate court besides the 9th Circuit in Tighe . . . .” (People v. Grayson (2007) 155 Cal.App.4th 1059, 1067-1068 [listing cases rejecting the holding in Tighe].) We agree with these cases and the following observation in Grayson: “Given that juvenile adjudications are fully consistent with constitutional principles and sufficiently reliable for juvenile court purposes, even in the absence of the right to a jury trial, we see no reason to preclude their use by trial courts in enhancing criminal defendants’ sentences.” (Grayson, at p. 1069.) Accordingly, the trial court did not violate defendant’s right to a jury trial when it imposed an aggravated sentence based on defendant’s juvenile adjudications.
D. Defendant Forfeited His Claim the Trial Court Erred in Assessing Him Probation Costs
In the presentence report, the probation officer recommended “the court determine if the defendant has the ability to pay for the cost of the probation report in the amount of $2,762.17.” At sentencing, the court made the following order: “‘The court determines the defendant has the ability to pay cost of probation ultimately, that figure currently is set by probation in the amount of $2,762.17.’” Defendant did not object to the assessment in the trial court. He now challenges the sufficiency of the evidence to support the court’s order, and complains he was never advised of his right to challenge the fee.
Section 1203.1b provides that in any case where a defendant is convicted of an offense and is the subject of a presentence investigation and report, the probation officer, “taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost . . . of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203 . . . .” (§ 1203.1b, subd. (a).) If the probation officer determines that a defendant has the ability to pay some or all of the reasonable cost of preparing a presentence report and determines the amount and manner of such payment, “[t]he probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant’s ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.” (Ibid.)
The record does not reflect the probation officer determined defendant had the ability to pay some or all of the costs or that he advised defendant of his right to a hearing, and there is no evidence defendant expressly waived that right. Nor did the trial court conduct a hearing to determine the payment amount or defendant’s ability to pay the assessment. The Attorney General argues, however, that defendant waived or forfeited the issue on appeal because he failed to object at the time of sentencing. We agree with the Attorney General.
In People v. Welch (1993) 5 Cal.4th 228 (Welch), the California Supreme Court concluded the defendant waived the right to challenge on appeal the trial court’s imposition of probation conditions when he failed to object at the sentencing hearing in the lower court. (Id. at pp. 234-235.) The court in Welch explained, “A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis.” (Id. at p. 235; see also People v. Scott (1994) 9 Cal.4th 331, 351, 354 (Scott) [“lack of a timely and meaningful objection forfeits or waives [a] claim” the trial court imposed sentence on a “procedurally or factually flawed manner”].)
People v. Valtakis (2003) 105 Cal.App.4th 1066 (Valtakis) applied Scott’s forfeiture rule to assessments imposed under section 1203.1b. In Valtakis, the presentence report recommended assessment of a $250 probation service fee but the report contained no determination of the defendant’s ability to pay the fee or advisement of a right to a separate hearing on the issue. Without any objection from the defendant or his attorney, the sentencing court ordered payment of the fee. (Valtakis, at p. 1069.) On appeal, the defendant challenged the imposition of the fee because the probation department and the trial court did not comply with the section 1203.1b probation fee procedures. Specifically, the defendant claimed he did not knowingly and intelligently waive his rights under section 1203.1b because the probation officer failed to inform the defendant he had a right to a separate court hearing, and the court failed to hold a separate hearing or make its own determination. The Valtakis court held that section 1203.1b’s requirement of a knowing and intelligent waiver of a defendant’s right to an ability-to-pay hearing is subject to the general rule that failure to raise the issue below waives any claim of error on appeal. The court presumed the Legislature knew when they adopted and revised section 1203.1b that “long-established [waiver] principles exemplified in Welch and Scott” required counsel to preserve claims of error by objection. (Valtakis, at p. 1075.)
Here, defendant had notice the probation department recommended imposition of a fee to cover the costs of the probation report. Defense counsel had an opportunity to review the report and recommendations, and argued on behalf of his client before the court imposed sentence. Defendant challenged portions of the probation report, such as the probation officer’s finding the crime involved planning and sophistication, but he failed to object to the fee.
Defendant relies on People v. O’Connell (2003) 107 Cal.App.4th 1062 and People v. Adams (1990) 224 Cal.App.3d 705, 707, but neither case considered the forfeiture issue raised in Valtakis. An opinion is only authority for the proposition it actually considers and decides. (In re Chavez (2003) 30 Cal.4th 643, 656.)
III
Disposition
The judgment is affirmed.
WE CONCUR:
SILLS, P. J., IKOLA, J.