Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 150811.
Richman, J.
After pleading no contest to two counts of second degree robbery and admitting that he had a prior felony conviction, defendant Paul Murray was found guilty of first degree special circumstance murder, willful, deliberate and premeditated attempted murder, and being a past-convicted felon in possession of a firearm. Both the murder and the attempted murder counts included personal firearm use and great bodily injury allegations. The trial court sentenced defendant to life without the possibility of parole on the murder charge, and stayed execution of sentence on all other counts and all but one of the enhancement allegations. On this timely appeal, defendant raises four claims of evidentiary error. We conclude that none of these claims has merit, and therefore affirm.
BACKGROUND
The charges for which defendant went to trial all related to the robbery of the Seminary Gas & Food Mart in Oakland on the night of August 23, 2003. It is undisputed that at approximately 9:30 p.m., a young African-American man entered the store, took money from the register, killed cashier Paul Bajwa, and severely wounded employee Sohan Singh. The incident was recorded by no fewer than five video surveillance cameras inside the store.
Defendant’s counsel has set forth an admirably concise narrative of what occurred after the robbery. With minor editorial changes, we adopt it as our own:
“The gunman left no fingerprints. His identity remained a mystery until the surveillance video recording s were shown on television and an anonymous informant identified him to the police as Paul Murray. The police issued [sic] an arrest warrant. [¶] On September 27, 2003, officers went to... Stockton.... The police found him and arrested him.
“That same day, Oakland Police officers went to Sacramento and searched the apartments of Undeener Foots, Murray’s... wife, and her mother, Rommie Holmes. Isaac McDaniel, who lived nearby, called Holmes and told her what was happening. Holmes went home and spoke to the police. Sgt. Reilly showed her Murray’s DMV photograph (Exhibit 10H) and told her the police were looking for him. Then Reilly showed the photograph of the gunman in the ‘special bulletin’ the police issued after the Seminary Gas Station murder. Holmes knew what Murray looked like. They were together when her daughter gave birth to Murray’s son Pierre. And they had spent time together in Reno. She told Reilly the man in the special bulletin photograph was Paul Murray.
“The police had Holmes accompany her daughter to a motel in Stockton, where Foots and Murray had been staying. That night, Oakland Police Sgts. Medeiros and Green interviewed both women.... After first showing Holmes Murray’s DMV photograph, they showed her the photo of the gunman in the special bulletin. ‘That’s Paul, ’ she said. ‘Are you sure?’ Medeiros asked.... ‘It’s him, ’ Holmes replied. ‘It’s him.’
“Medeiros and Green then interviewed Foots.... [¶] Foots lived in Sacramento, but for the previous three or four days she and Murray had been in Stockton, staying at the Cal Inn Motel. Medeiros showed her Murray’s DMV photo. She identified it as a picture of Murray....
The day after defendant was arrested, police searched the hotel room in which he and Ms. Foots had been staying, and found $780. It was stipulated at trial that $530 was taken from the Seminary Gas & Food Mart on August 23, 2003.
“She had known Murray for a few years. They had a two-year-old son, Pierre. But Murray had been in jail for a couple of years, so they were apart until his release from jail three or four weeks earlier. During those few weeks he had taken her shopping about ten times; each time, he spent hundreds of dollars on her. She knew he wasn’t working, so she assumed he got the money illegally, perhaps by selling drugs, or by ‘robbing things.’ When she questioned him about it, he said, ‘Ask me no questions, I’ll tell you no lies.’
It was further stipulated that, from November 4, 2001 to July 31, 2003, defendant was in custody in Sacramento.
“She recounted the time a couple of weeks earlier when he called her in Sacramento and asked her to meet him in Oakland. ‘Babe, I’m stressed out.... I need to see you. I need you right now.’... When she arrived, he hugged and kissed her and started crying. ‘Babe, ’ he said, ‘I need you more than anything right now.’ ‘What’s wrong?’ she asked.... He kept crying and hugging her, saying over and over, ‘I fucked up. I fucked up big.... Shit went bad at the situation. Shit didn’t go like it was supposed to go.’ ” In what appears was a separate conversation, defendant told Ms. Foots over the telephone, “ ‘That he robbed some shit, it all went bad and blew up.’ ”
“The officers showed her five photographs taken by the surveillance cameras at the Seminary Food Market.... Photo no. 1 was blurry, she said, but ‘it looks like it’s Paul Murray.’ Photo no. 2 was a blow-up of photo no. 1: ‘In this picture, ’ she said, ‘I could tell, yes, it does look like Paul.’... Photo no. 3 was the special bulletin photo; she was sure the man in that photo was Murray. So, too, in photo no. 4. What about the man in photo no. 5? ‘Paul Catono Murray, ’ she said. ‘Is there any doubt in your mind that’s Paul?’ Medeiros asked. ‘No, ’ she said, ‘that is him.’ ”
“The third person to identify Murray was Sohan Singh. As noted, Singh was shot and severely wounded during the robbery. He did not regain full consciousness for many months after. On October 14, 2003, when Singh was still semi-conscious, Sgt. Medeiros and a Punjabi-speaking police officer interviewed him at Highland Hospital. (The interview was recorded on videotape and played for the jury.) Medeiros showed him Murray’s picture in a photo line-up; Singh did not identify Murray as the gunman. At the preliminary hearing and at trial, however, he did....”
“[¶]... [¶] To place Murray in Oakland at the time of the murder, the prosecution produced a receipt showing Murray had rented a room at an Oakland motel on August 23, 2003.
“To establish that he was the man who robbed and shot Bajwa and Singh, the prosecution-over objection-also adduced ‘similar fact’ evidence that Murray had committed robbery with a gun at a Kragen Auto Parts store in Sacramento some two years earlier. That robbery was also recorded by video surveillance cameras. The tape (exhibit 15) was played for the jury, and two witnesses-victim Christopher Florentino and Investigating Officer Bruce Dubke of the Sacramento Police-testified about the crime.”
Defendant did not testify.
DISCUSSION
All of defendant’s contentions pertain to pretrial evidentiary rulings made by the trial court. We address then by the numbers.
(1)
When the case was assigned for trial, defendant filed an “In Limine Motion to Suppress Witness Identification Testimony” by Undeener Foots and Rommie Holmes on the ground that “both Foots’ and Holmes’ identifications of the defendant resulted from a leading and suggestive interrogation process and should be excluded... as unreliable.”
After hearing extensive argument, the trial court tentatively denied the motion, but it allowed the defense to revisit the issue-even if necessary with an evidentiary hearing pursuant to Evidence Code section 402-should additional information arise. The court stated: “I’m not inclined to grant a 402 on what’s in front of me. [¶]... [¶]... I just don’t see it as a close issue yet. [¶]... [¶] From what I know, everything I’m ruling about is tentative. I’ve asked questions because if there is something you are aware of, become aware of, more concrete, then perhaps we should have such hearings and I can rule further. And any ruling I make is not-in this area is not final and definitive. [¶]... [¶] At this point my tentative ruling is to deny the motion to suppress identification testimony. And as I’ve indicated before, it’s tentative. If there’s a more concrete offer of proof, I’ll reconsider whether I’ll take further evidence and certainly reconsider my ruling.”
Ms. Holmes made an in-court identification of defendant at the trial. She testified that she first identified defendant when Sergeants Reilly and Medeiros showed her the special bulletin prepared by the Oakland Police Department, which had five pictures obviously taken from the store’s video surveillance camera. When asked on direct examination “Did you have any hesitation in looking at that and saying ‘That’s Paul Murray, ’ ” Ms. Holmes answered, “No.” It is unclear from the record whether she was shown a enlarged copy of defendant’s DMV license photo (People’s Ex. 10-H) before the special bulletin.
Regarding Ms. Foots, Sergeant Medeiros testified that defendant’s DMV photo was the first thing shown to her. He further testified that when she was shown the surveillance photos in the special bulletin, Ms. Foots responded that the person depicted “looked like” defendant. However, she testified that she was “scared” and “very high” on cocaine when she spoke with Sergeant Medeiros. Sergeant Medeiros testified that Ms. Foots seemed nervous, but did not appear to be under the influence. She also identified defendant at trial.
Defendant first contends that “the admission of evidence that Foots and Holmes identified appellant in the surveillance camera photographs was a violation of due process.”
The Attorney General submits in an excellent and comprehensive brief that defendant waived the issue for appeal because the trial court’s ruling was only tentative. However, it was tentative only in the sense it could be revisited if defendant produced new evidence, which defendant did not. The ruling was therefore not tentative, but final. In any event, we choose to address defendant’s claim on the merits.
The standard formulation for reviewing this type of claim has been stated by our Supreme Court as follows: “In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. (Manson v. Brathwaite (1977) 432 U.S. 98, 104-107, 114; [citations].) [¶] The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. [Citations.] ‘The question is whether anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’ [Citation.] [¶]... [¶] Moreover, there must be a ‘substantial likelihood of irreparable misidentification’ under the ‘ “ ‘totality of the circumstances’ ” ’ to warrant reversal of a conviction on this ground. [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 989-990.) Finally, a trial court’s ruling that a pretrial identification procedure was not unduly suggestive is reviewed de novo. (People v. Avila (2009) 46 Cal.4th 680, 698-699; People v. Kennedy (2005) 36 Cal.4th 595, 609.)
But the standard template does not really fit here, because defendant is not challenging the identification made of him as the perpetrator by a percipient witness to the crime. Defendant acknowledges that a line of precedent opposes him: “It is now clearly established that lay opinion testimony concerning the identity of a robber portrayed in a surveillance camera photo of a robbery is admissible where the witness has personal knowledge of the defendant’s appearance at or before the time the photo was taken and his testimony aids the trier of fact in determining the crucial identity issue. (People v. Mixon (1982) 129 Cal.App.3d 118; People v. Perry (1976) 60 Cal.App.3d 608.) Where the photo is unclear, or the defendant’s appearance has changed between the time the crime occurred and the time of trial, or where for any reason the surveillance photo is not conclusive on the identity issue, the opinion testimony of those persons having knowledge based upon their own perceptions (Evid. Code, § 800, subd. (a)) of defendant’s appearance at or before the time the crime occurred is admissible on the issue of identity, and such evidence does not usurp or improperly invade the province of the trier of fact. (People v. Mixon, supra; People v. Perry, supra.)” (People v. Ingle (1986) 178 Cal.App.3d 505, 513.)
Nevertheless, defendant argues that the danger of irreparable misidentification is still present: “Foot and Holmes did not witness the crimes in this case, so the criteria described in Manson v. Brathwaite (e.g., opportunity to view criminal at time of crime, degree of attention, accuracy of prior description of criminal) do not apply. Yet the likelihood of irreparable misidentification was no less substantial for that. Indeed, precisely because of their relationship to Murray, Foots and Holmes were the most important identification witnesses in the case-and by far the most likely to influence the jury’s determination whether Murray was the man in the surveillance videos.”
“ ‘The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair.’ ” (People v. Jablonski (2006) 37 Cal.4th 774, 805 (Jablonski), quoting People v. Falsetta (1999) 21 Cal.4th 903, 913.) Due process in the specific context of identification testimony considered here has not found a California exposition, but it is instructive to examine a decision from the Hawkeye state.
In State v. Walton (Iowa 1988) 424 N.W.2d 444, police dispatcher Henderson identified the defendant as making a 911 call and asking whether a crime had been reported. The defendant challenged the dispatcher’s pretrial voice identification as a violation of due process. The court rejected this challenge, stating: “We note initially that the present situation is one step removed from those with which we have been confronted in past analogous cases. In those earlier cases, we were presented with procedures which led to the identification of an accused as a criminal perpetrator. [Citation.] Here, by contrast, Henderson’s testimony did not identify Walton as a criminal perpetrator; rather, it connected him only with the 911 call. Concededly, this connection provided the police with a lead which later proved fruitful. It did not, however, directly identify Walton as the person who committed the assault. Our standard is fairness, and the interest protected by this analysis is evidentiary. [Citation.] Given this, we think Walton’s due process challenge notably prescribed.” (Id. at p. 447, italics added.)
The court did not explain what it meant by “notably prescribed, ” but its import seems obvious. An identification that does not directly tag a person as the perpetrator of a criminal act clearly has less weight, as an evidentiary matter, than one which does make that direct connection. Given the lesser evidentiary heft, identifications that are not directly inculpatory would necessarily have less consequence to a due process inquiry into the fundamental fairness of a trial. Such is apparent from the precise meaning of the word “evidentiary” in this context: “ ‘In essence what the... due process right protects is an evidentiary interest.... [¶] It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness-an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart-the “integrity” of the adversary process....’ ” (Manson v. Brathwaite, supra, 432 U.S. 98, 113 114, fn. 14, quoting Clemons v. United States (D.C. Cir. 1968) 408 F.2d 1230, 1251 (concurring opn. of Levanthal, J.).)
We do not believe it was a violation of due process for the trial court to deny defendant’s motion and let the jury hear evidence regarding Holmes’s and Foots’s pretrial identifications of defendant. Whether intimidation, intoxication, or suggestion produced the identifications could be explored in cross-examination by the defense, but would have to be balanced against the intimate knowledge of defendant Ms. Foots had previously acquired, the lesser but still considerable acquaintance Ms. Holmes had of him, and the fact that both identified defendant at trial. Moreover, the ultimate issue of defendant’s culpability rested on the jury’s opinion of whether the person depicted in the surveillance camera videotape from the Seminary Gas & Food Mart on August 23, 2003, was the same man sitting before them in court. We therefore cannot agree with defendant’s assertion that “Foots and Holmes were the most important identification witnesses in the case-and by far the most likely to influence the jury’s determination whether Murray was the man in the surveillance videos.” And the impact of Mr. Singh’s identification of defendant at trial cannot be dismissed as negligible, nor the fact that defendant was already under arrest for the charged offenses when Ms. Holmes and Ms. Foots made their pretrial identifications, nor the fact of defendant’s incriminatory statement to Foots that he “fucked up” in a robbery.
And not just sitting. As defendant notes in his opening brief: “The trial court had Murray stand and face the jurors so they could have a clear view of his face.”
At the time she spoke to Sergeant Medeiros, Ms. Foots knew defendant was in custody.
We conclude that the showing made by defendant in support of his motion did not establish either coercion or undue suggestion as a matter of law, and thus did not demonstrate a violation of due process so patent the trial court had to grant the motion.
(2)
The prosecution also filed what was in effect a motion in limine seeking leave to introduce evidence that defendant had committed six uncharged robberies-four in 2001 in and around Sacramento, and two in 2003 in Solano County-“to show defendant Murray’s criminal intent, common scheme and identity in the instant case.” After conducting an extensive hearing listening to argument on what it called “the 1101 stuff, ” the trial court allowed only one of the uncharged robberies to be put before the jury. That one was the robbery of a Sacramento Kragen Auto Parts store in 2001, which was allowed because it, like the charged offenses, was recorded on videotape. The court ruled that evidence of this robbery would be admissible on the issue of intent. However, after hearing the testimony of Mr. Florentino and Officer Dubke, and viewing the videotape of the Kragen store robbery, the court amended its ruling to allow the jury to consider the evidence on this issue of a common scheme or plan as indicative of intent. The jury was so instructed.
The jury was instructed with the following modified version of CALJIC No. 2.50: “Evidence has been introduced for the purpose of showing that the defendant committed an act similar to those constituting a crime other than that for which he is on trial. [¶] This evidence, if believed, was not received and may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. [¶] Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show:. [¶] A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent which is a necessary element of the crime charged, if any, of which the defendant is accused, a clear connection between the other offense and the one of which the defendant is accused so that it may be inferred that if defendant committed the other offense defendant also committed the charged crimes in this case; [¶] The existence of the intent which is a necessary element of the crime charged; [¶] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. [¶] You are not permitted to consider this evidence for any other purpose.”
Defendant, however, treats the evidence as admitted to prove identity. “[I]t would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention.” (People v. Lilienthal (1978) 22 Cal.3d 891, 896.) There being no timely and specific objection, the claim of error was not preserved for review. (Evid. Code, § 353, subd. (a); People v. Kennedy, supra, 36 Cal.4th 595, 612.)
(3)
The prosecution’s final effort was an oral in limine motion to be permitted to show the jury jailhouse photographs of tattoos on defendant reading “Get rich, Die trying.” The prosecution argued that the photographs were “highly relevant” on the issue of defendant’s motive in “these robberies that the defendant committed in 2003.” The defense objected, on the ground that motive, i.e., intent, was not relevant because “there is no issue on intent.” In addition, the defense also objected on the ground that “admission of those photographs would violate the Due Process Clause of United States and California constitutions.” Finally, the defense asked that the photographs be excluded as “collateral and... unnecessary” in the exercise of the court’s discretionary power under Evidence Code section 352.
It seems likely that counsel was not referring to the uncharged Sacramento and Solano robberies, but to two charged robberies defendant was alleged to have committed in Alameda County in 2003. Those two counts were still pending at the time the court made its ruling. It was only later that defendant changed his pleas to those counts from not guilty to no contest.
Again, tentatively, the court granted the prosecution’s motion: “I cannot at this time-I should weigh it, I am weighing it, and I can see there is substantial probative value. To the extent there is prejudicial value, it seems linked mostly to the fact there is probative value about it. I don’t know when it may become clearer when the tattoos go on [were made], but that’s not crucial to my ruling. If he chooses to tattoo his body with motive, that fits the crimes here, seems to have meaningful probative value that clearly outweighs any prejudicial effect, if there is any prejudicial value, that can be separated out in probative value. [¶] This is my tentative ruling, Mr. Sirbu [defense counsel]. If you have some case that talks about some factual situation like this, tattooing or other message, that you think would be useful, I’ll be happy to revisit it and try to apply a further weighing. [¶] MR. SIRBU: All right. [¶] THE COURT: But at this point, those two pictures come in.”
Defendant sees this as an instance of abuse of the discretion under Evidence Code section 352, and improper character evidence under Evidence Code section 1101, subdivision (a). We disagree.
“ ‘[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question [citation]. Evidence is substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it poses an intolerable “risk to the fairness of the proceedings or the reliability of the outcome” [citation].’ ” (Jablonski, supra, 37 Cal.4th 774, 805, quoting People v. Waidla (2000) 22 Cal.4th 690, 724.) “Under the abuse of discretion standard, a ‘trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1004 (Hovarter), quoting People v. Guerra (2006) 37 Cal.4th 1067, 1113.)
First, although defendant analyzes the issue of the tattoos in terms of propensity to-commit crime evidence and the lack of relevancy to the issue of identity, he does not confront the issue proffered by the prosecution and accepted by the trial court-motive. The subject has prompted repeated iteration that “Motive is always relevant in a criminal prosecution.” (People v. Perez (1974) 42 Cal.App.3d 760, 767; accord, People v. Clark (1970) 6 Cal.App.3d 658, 666; People v. Willis (1924) 70 Cal.App. 465, 470; see People v. Rongo (1914) 169 Cal. 71, 75 [“proof of motive... is always permissible”].) Granted, the message of the tattoos was susceptible to differing interpretations depending upon context or mental perspective, but this “concerns only the weight of this evidence, not its admissibility, which does not require complete unambiguity.” (People v. Ochoa (2001) 26 Cal.4th 398, 438.) Second, defendant musters no authority that tattoos are inherently prejudicial in the sense covered by Evidence Code section 352. Our Supreme Court has twice found that section 352 is compatible with admitting evidence pertaining to a defendant’s tattoo(s). (People v. Navarette (2003) 30 Cal.4th 458, 496; People v. Ochoa, supra, at pp. 437-438.) In these circumstances, defendant has not established a manifest abuse of discretion. (Hovarter, supra, 44 Cal.4th 983, 1004.)
Defendant is therefore incorrect in reading the prosecutor’s closing argument as somehow improper. The prosecutor was clearly arguing the point of motive when he told the jury “He’s got his intent tattooed on his body.... He thinks it’s important, I guess, to let everybody out there know by his tattoos what his intent is. He’s going to get rich or die trying.” Which in turn set up this devastating flourish: “ ‘Get rich, die trying.’ Except the only person who died in this case was an innocent store clerk, going to work, doing his job. That’s the person who died.” If, as defendant insists, the prosecutor “couched her argument in terms of ‘motive and intent, ’ but propensity was what she really meant, ” the remedy was counter argument.
(4)
When defense counsel learned just before opening statements that the prosecution intended to call Mr. Bajwa’s widow, he objected: “She’s being asked to testify... that she never received back after this incident the victim’s cell phone or wallet. [¶]... I object to her being called because the evidence can be established through other sources, ” such as Sergeant Medeiros. Conceding that the information was relevant, counsel asked that the testimony be excluded under Evidence Code section 352 because “calling the widow of a victim with the jury observing her loss-they will see her demeanor-is prejudicial when those evidentiary points can be established through someone else.” The trial court overruled defendant’s objection: “Motion denied under 352. You haven’t really described anything like prejudice, and neither you nor I should be defining how the D.A. proves relevant evidence. In the statements of officers, they didn’t find these things [but that] doesn’t establish that they existed beforehand; the widow probably can.”
Mr. Bajwa’s widow was the first witness at the trial. She testified very briefly, identifying a photograph of her husband, and testifying that both her husband and Mr. Singh were at the store on August 23, 2003. The following then occurred during her direct examination by the prosecutor:
“Q. And at some point in time you learned that your husband was a victim of a murder, is that correct?
“A. Yes.
“Q. Now, after you learned that, did you receive any of his property?
“A. No.
“Q. Okay. Did your husband have a cell phone on August 23, 2003?
“A. Yes, he does [sic].
“Q. You never got that back?
“A. No.
“Q. Did he have a wallet?
“A. Yes.
“Q. Did he actually-would he carry his money in his wallet?
“A. Yes, but I don’t know much is it.
“Q. But he had a wallet?
“A. Yes, he does [sic].
“Q. Did you ever get his wallet back?
“A. No
“MS. CAMPBELL: Okay. I have no further questions.
“THE COURT: Cross-examination, if any?
“MR. SIRBU: None, Your Honor. Thank you very much.”
Defendant sees this as another instance of abuse of the discretion granted by Evidence Code section 352. We do not. The widow’s testimony was certainly relevant if for no other reason than identifying the victim and placing him in the market. In addition, as the trial court noted, the defense could not prevent the prosecution from proving its case in its own way. (See People v. Salcido (2008) 44 Cal.4th 93, 149 150.) The notion that a murder victim would leave behind a surviving spouse is hardly intrinsically inflammatory, a subject likely to leave a jury emotionally unhinged to the accused’s disadvantage. (Jablonski, supra, 37 Cal.4th 774, 805.) Moreover, to judge from the record, and the absence of any subsequent mention by defense counsel, the widow’s testimony appears to have proceeded without incident. It may therefore be concluded that defense counsel’s fears never materialized. On this record, there is nothing resembling a manifest abuse of discretion. (Hovarter, supra, 44 Cal.4th 983, 1004.)
DISPOSITION
The judgment of conviction is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.