Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF090046 H.A. Staley, Judge. (Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Defendant Michael Demetrius Roman admittedly shot and killed a neighbor. He claims that he acted in self-defense, or at least in an unreasonable belief in the need for self-defense.
In a previous trial, defendant was found guilty of second degree murder. The conviction was affirmed by this court in People v. Roman (Aug. 15, 2003, E031925 [nonpub. opn.]). Defendant subsequently filed a petition for writ of habeas corpus in the federal district court, which was granted, reversing his conviction. (Roman v. Hedgpeth (Oct. 8, 2008) 2008 U.S. Dist. LEXIS 79509 at pp. *12-*48.)
On retrial, defendant was found not guilty of murder and not guilty of voluntary manslaughter, but guilty of involuntary manslaughter. A personal firearm use enhancement was found true. (Pen. Code, § 12022.5, subd. (a).) One strike prior was also found true. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) As a result, defendant was sentenced to a total of 10 years in prison.
In this appeal, defendant contends:
1. The trial court erred by admitting evidence of a prior stabbing to impeach defendant.
2. The trial court erred by denying defendant’s motions for mistrial based on prosecutorial misconduct.
3. The use of defendant’s juvenile adjudication as a strike prior violated his right to trial by jury and due process.
We find no prejudicial error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. The Shooting.
Defendant lived at the corner of Heacock Street and Myers Avenue in Moreno Valley. He was friends with George Aguilar; Aguilar lived in the same neighborhood, along with his girlfriend and her family. Shannon Carriere, the girlfriend’s brother, was also staying there temporarily.
On the night of August 8-9, 1999, around 11:00 p.m., defendant was out in his garage; the lights were on and the garage door was open. Around midnight, Carriere left his house; he said he was going for a walk. Around 12:30 a.m., persons in the neighborhood heard two gunshots. One neighbor saw defendant run into his garage, shut off the lights in the house, and slam down the garage door.
For some reason, as soon as Carriere’s family heard the gunshots, they thought that Carriere was involved and that he was at defendant’s house.
A bystander saw Carriere run down Heacock, away from Myers, then fall. He died at the scene. He had been shot twice. One bullet had entered the front of his thigh and exited through the back of the thigh. It traveled downward, at an angle of about 45 degrees. The second bullet had entered his left back and lodged in his left chest. It traveled “sharply upward, ” at an angle of about 60 degrees. It was recovered and found to be a.38-caliber bullet. Only the second shot was fatal. Both shots were fired from at least two feet away.
Carriere was wearing a large overcoat or jacket. Blood tests showed that he was under the influence of both alcohol (his blood alcohol level was 0.15 percent) and methamphetamine.
No weapons were found near the body or in the neighborhood. The police found only one.38-caliber bullet casing, in defendant’s driveway, five or six feet outside his garage door. In a search of defendant’s house, they found.38-caliber ammunition, but no gun.
Defendant was arrested about six months later, in February 2000. When interviewed, he said, “I know what I’m accused of. I saw my picture on the TV. I was surprised. I didn’t do nothing. I never even knew the guy.... I just want you to know I didn’t do it....”
B. Defendant’s Stepson’s Account.
1. Trial testimony.
Justin Ramirez, defendant’s stepson, was unavailable to testify at trial. Accordingly, his previous testimony was read into the record.
On the date of the shooting, Justin was 11 years old. He testified that he and defendant were in the garage, playing darts. The garage door was open. A man walked up. Justin had seen the man and his brother the day before but did not know him. Defendant went to talk to the man. They were talking softly; there was no argument. Justin did not hear what they were talking about.
Defendant then told Justin, “Go get the [c]uete.” Justin understood “[c]uete” to mean “firecracker.” Actually, it is also Spanish slang for “gun.”
Justin went in the bedroom, where his mother was sleeping. He told her defendant wanted the cuete. She did not wake up fully; she just said, “Yeah, yeah, yeah.” Justin went back out to the garage and told defendant, “[M]y mom doesn’t want to give it to me.”
Defendant ran into the house. He went into the bedroom for a few seconds, then went back out to the garage. Justin and his mother both stood inside the interior garage door and peeked into the garage.
Defendant looked scared. He said, “Just leave. I don’t want no problems.” The other man said, “I’m not leaving until I see blood on my hands.” He looked “mean.” He looked like he was drunk or on drugs, because he was having trouble keeping his balance. He had one hand in his pocket.
Suddenly, the other man lunged toward defendant. Justin heard two shots. The man then ran out into the street. Defendant grabbed Justin’s bike and rode away on it.
2. Statements to the police.
The police interviewed Justin the morning after the shooting. He said that both defendant and the other man “looked mean.” He also said, “[A]ll I heard was gunshots.” He did not mention that the other man said anything, had his hand in his pocket, or lunged at defendant.
C. Defendant’s Wife’s Account.
1. Trial testimony.
Defendant’s wife, Rosemarie Roman, testified that Justin woke her up and asked for a gun. After Justin left, defendant “rushed” into the bedroom, grabbed the gun from a drawer, then “rushed” out again.
Defendant’s wife went to the interior garage door and peeked into the garage. She saw defendant and another man facing each other. She had seen the man once before, a day earlier, standing in the driveway, but she had never spoken to him. “He looked like he was drunk or high.” He had one or both hands in his jacket.
Defendant had a gun in his hand. He said, “Just get out of here.” The other man said, “I’m not leaving until I get what I want.” He then lunged forward. Defendant shot the man twice. Defendant’s wife saw the man starting to run out as she screamed and went inside to “g[e]t [her] kids.” Defendant left immediately.
Defendant’s wife also testified, however, that she did not hear anything that defendant or the other man said to each other.
2. Statements to the police.
Defendant’s wife never told the police that the other man said, “I’m not leaving until I get what I want.”
D. Defendant’s Account.
Defendant, testifying on his own behalf, said that he saw Carriere for the first time on the day before the shooting, when another relative of Aguilar (and of Carriere) came over so that defendant could vaccinate his puppy. Carriere came with him but waited outside, at the end of the driveway. Defendant noticed that Carriere had a “white pride” tattoo. Later that day, Aguilar gave defendant some kind of warning about Carriere.
Aguilar testified that, about two days before the shooting, he asked defendant “not to hang around with” Carriere. He told defendant, if Carriere came around, defendant “should tell him to leave and not have anything to do with him[.]” He did so because he was “worried about... Carrier[e].”
On the night of the shooting, defendant and Justin were in the garage, playing darts. When Carriere showed up, he smelled of alcohol, and he appeared to be on drugs; he was “antsy” and agitated. He was wearing a baggy overcoat, even though it was hot. He kept his left hand in a pants pocket. Defendant concluded that he had a gun.
Defendant asked, “What do you want?” Carriere said defendant knew why he was there. He added, “[You] need to break [me] off. If [you] don’t break [me] off, [I’m] going to go into [your] home and break [my]self off.” Defendant understood this to mean that Carriere intended to rob him.
Defendant told Justin to go inside and ask his mother for defendant’s “[c]uete.” While Justin was gone, defendant warned Carriere that he had a gun and told him to leave. Carriere just repeated that defendant should “break him off.”
When Justin came out without the gun, defendant ran in the house, got the gun, loaded it, cocked it, put it in his pocket, and went back to the garage. As he opened the interior garage door, Carriere was so close that “it pushed [him] backwards, like if he was going to open the door....”
Defendant warned Carriere again that he had a gun and that Carriere should leave. Carriere just laughed, then lunged at defendant. Defendant dodged back, “tripped over [his] own feet, ” and started falling. At the same time, he pulled out the gun. He fired once, downward, toward Carriere’s leg. Carriere started to turn. Defendant’s elbow hit the floor; the gun went off again, this time by accident. Defendant saw Carriere run, then fall.
There was expert testimony that the most likely cause of a semiautomatic failing to eject a bullet casing is that the shooter “doesn’t have a good handle” on the gun.
Defendant panicked. He grabbed Justin’s bike and left. He denied turning off the lights or shutting the garage door. The next day, he melted down the gun with a welding torch.
An expert forensic pathologist testified that the levels of alcohol and methamphetamine found in Carriere’s blood could produce agitation and potentially even violent behavior.
II
ADMISSION OF PRIOR STABBING TO IMPEACH DEFENDANT
Defendant contends that the trial court erred by allowing the prosecution to admit evidence of a prior stabbing, committed when he was a juvenile, to impeach him.
A. Additional Factual and Procedural Background.
In December 1990, when defendant was 16, he sustained a juvenile adjudication for aggravated assault.
Before defendant testified, defense counsel objected to impeachment with this prior as more prejudicial than probative under Evidence Code section 352. He argued that the prior was remote, was sustained when defendant was a juvenile, and was likely to be misused as propensity evidence.
The trial court limited the prosecution to showing that in December 1990, when defendant was 16, he stabbed someone. Subject to that limitation, it admitted the evidence.
B. Analysis.
A juvenile adjudication is not a criminal conviction; therefore, it cannot be used to impeach a witness under Evidence Code section 788. (People v. Sanchez (1985) 170 Cal.App.3d 216, 218-219.) However, the conduct underlying a juvenile adjudication is admissible to impeach, provided it involves moral turpitude. (People v. Rivera (2003) 107 Cal.App.4th 1374, 1380-1382.)
“[U]nder People v. Wheeler (1992) 4 Cal.4th 284, 292-293 [14 Cal.Rptr.2d 418, 841 P.2d 938], the court has broad discretion to admit acts of moral turpitude to impeach a witness’s credibility. ‘[I]mpeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, [under Evidence Code section 352, ] courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.’ [Citation.] A court also may consider issues of ‘fairness, efficiency, and moral turpitude’ when evidence other than a felony conviction is proffered for impeachment. [Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 443.)
“When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.]” (People v. Wheeler, supra, 4 Cal.4th at p. 296.) When prior conduct is offered to impeach, these factors include: “(1) whether the prior [conduct] reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was... the same or substantially similar [to] conduct for which the witness-accused is on trial; and, (4) finally, what effect admission would have on the defendant’s decision to testify.” (People v. Castro (1985) 38 Cal.3d 301, 307; accord, People v. Mendoza (2000) 78 Cal.App.4th 918, 925 [Fourth Dist., Div. Two].)
“‘Our review on this issue is deferential. A trial court’s decision whether to exclude evidence pursuant to Evidence Code section 352 is reviewed for abuse of discretion. [Citation.]’ [Citation.]” (People v. Hamilton (2009) 45 Cal.4th 863, 929-930.) “A trial court’s discretionary ruling under this statute ‘“must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]”’ [Citation.]” (People v. Williams (2008) 43 Cal.4th 584, 934-635.)
Almost all of the factors that the Supreme Court has directed us to consider militated against the admission of the prior conduct. First, the prior conduct involved assault, not dishonesty. “‘[C]onvictions which are assaultive in nature do not weigh as heavily in the balance favoring admissibility as those convictions which are based on dishonesty or some other lack of integrity.’ [Citation.]” (People v. Castro, supra, 38 Cal.3d at p. 315; see also People v. Gurule (2002) 28 Cal.4th 557, 607-608 [prior rape and murder convictions “did not bear directly on defendant’s veracity”].)
Second, the prior conduct was remote - 19 years old. (See People v. Burns (1987) 189 Cal.App.3d 734, 738 [“a conviction that is 20 years old... certainly meets any reasonable threshold test of remoteness”].) The People argue that defendant “was incarcerated or on the lam for more than half” of this time. However, they do not cite this assertion to the record. (See Cal. Rules of Court, rule 8.204(a)(1)(C).) They appear to be counting the time defendant has served for the present crime, following his conviction in the first trial. To use this as evidence that he has not lived a “blameless life” (People v. Gurule, supra, 28 Cal.4th at p. 608), however, would assume what had yet to be proved - that defendant is guilty of the charged crime. In addition to being remote, the prior conduct was committed when defendant was a minor. “[W]hile not determinative, a conviction for a crime committed 20 years ago when the defendant was a minor may be weighed less heavily than a crime committed 20 years later when the defendant was middle-aged. [Citation.]” (Burns, at p. 738.)
Finally, the prior conduct was similar to the charged crime, at least to the extent that both were assaultive. It invited the jury to speculate that, because defendant had stabbed one person, he was capable of deliberately shooting another person.
We therefore conclude that the trial court abused its discretion by admitting evidence of the prior stabbing. We further conclude, however, that the error was not prejudicial. The jury was made aware that the stabbing occurred in 1990, when defendant was only 16, and therefore that it was relatively lacking in probative value. The trial court excluded any potentially inflammatory details surrounding the stabbing. The prosecutor did mention the stabbing in her closing argument but only as evidence that defendant was “not a particularly honest person.” The trial court instructed the jury: “If you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness’s testimony.” (Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 316.) The evidence was not so sensational that the jury would have had any difficulty following this instruction. Finally, the jury acquitted defendant of both murder and voluntary manslaughter, finding him guilty of only involuntary manslaughter. Thus, it found that he did not have the intent to kill. Evidently it did not reason that he had a propensity to either violence or assault.
In sum, then, while the trial court erred by admitting evidence of the prior conduct, the error, on this record, was harmless.
III
PROSECUTORIAL MISCONDUCT
Defendant contends that the trial court erred by denying his motions for mistrial, which were based on the prosecutor’s repeated misconduct.
A. Additional Factual and Procedural Background.
1. In limine rulings.
Before trial, defense counsel moved to exclude evidence of defendant’s “status as a probationer, parolee, or prisoner....” The prosecutor responded, “I’m not going to make references to it.... I would point out at least one of the prosecution witnesses is a family member of the accused, and I don’t know if he’ll make a mention of it or not. I don’t intend to deliberately go into it. It’s one of those things that might come out kind of accidentally.” The trial court thereupon “order[ed]... each counsel [to] advise their witnesses of the court’s in limine rulings regarding excluded evidence, at least have that conversation with them regarding items not to be mentioned....”
Defense counsel also moved to exclude a package of marijuana that had been found in defendant’s house. The trial court “exclude[d] the marijuana from evidence....”
The trial court sua sponte excluded evidence of defendant’s tattoos.
Before defendant testified, the trial court allowed the prosecution to impeach him with the fact that he had committed a previous stabbing. (See part II, ante.) Defense counsel asked the court “to give us a firm indication of what specifically the People are going to be allowed to ask Mr. Roman.” It responded: “[H]e can be asked a leading question.... [‘]Is it a fact in... December 1990, you stabbed another individual[’]?” It also allowed evidence of defendant’s age at the time. It added, “I would ask counsel to ask for a sidebar before assuming I would be willing to go beyond what I agreed to.”
2. Mistrial motions.
a. Marijuana.
During the prosecutor’s direct examination of Lieutenant Matthew Aveling, she asked him what he found in defendant’s garage. He responded that he found a box of ammunition “and also a small amount of marijuana near the ammunition.”
Defense counsel objected. The trial court struck the answer and admonished the jury to disregard it.
At the next break, defense counsel moved for a mistrial. The trial court asked the prosecutor, “[D]id you advise your witnesses?” She responded, “I advised Detective Fernandez, and I did advise Detective Aveling in the last trial. I don’t specifically recall whether I told them this time not to talk about the marijuana. I just said remember the same things as before. I didn’t specifically say that. [¶] I did tell Fernandez. He is the one that logged in all of the evidence.”
The trial court replied: “I don’t think your admonishment to your witnesses was within the spirit of the Court’s ruling for them to remember what they were told eight or nine years ago, but I don’t feel that rises to the level that a mistrial is required.” It added: “I would renew my order to both counsel to specifically speak with your witnesses and specifically let them know what evidence has been excluded in this case.”
b. Prisoner status.
During the prosecutor’s direct examination of defendant’s wife, she asked:
“Q. And when did you and Mr. Roman get married, what month and year?
“A. I think February. I don’t remember. He was incarcerated.”
Defense counsel objected. The trial court excused the jury, and defense counsel moved for a mistrial.
The trial court asked defendant’s wife if the prosecutor had talked to her about “things you shouldn’t mention”; she said no. The trial court then remarked, “I have some concern, because we already have in the fact that marijuana was found....” “And this witness not being advised at all causes the Court some concern.” “I mean of the evidence that’s been excluded, she’s probably aware of almost all of it.”
The prosecutor observed that defendant’s wife was a hostile witness and had initially refused to testify. The trial court noted that she had her own attorney and responded, “You could have certainly spoken with her attorney as well as her.”
The trial court denied the motion for mistrial but stated: “I don’t want you to think I’m going to keep denying the motions for mistrial when we receive evidence that was excluded from witnesses who you did not tell not to present that evidence in direct defiance of a court order. This is the second time.”
The prosecutor complained: “The Court can berate me all day long. I want the court to know there’s been no deliberate misrepresentation on my part, and I will say that in 20 years of practicing law in Riverside County... and in my three years practicing in Oregon and two years in... Idaho, I have never been treated by a judge like the Court is treating me, and it’s not fair.”
The trial court responded: “I apologize for that if it’s coming off like that to you.... I’m just asking you to comply with court orders regarding future witnesses.”
At defense counsel’s request, the trial court struck the statement that defendant had been incarcerated and instructed the jury to disregard it.
c. Tattoos.
During her cross-examination of defendant, the prosecutor asked: “[Y]ou have tattoos all over your arms, don’t you?” Defense counsel objected. At sidebar, he moved for a mistrial.
The prosecutor asserted that defendant had “tattoos... that I can see and all the jury can see.” The trial court noted that it had excluded evidence of the defendant’s tattoos. The prosecutor responded, “I don’t remember that ruling, your Honor.”
Aside from the prosecutor’s bare assertion, the record does not clearly indicate whether any of defendant’s tattoos were actually visible. The trial court’s remarks on this issue were ambiguous. It prefaced its ruling by stating, “Aside from the issue of the visibility of the defendant’s current tattoos, ” which could mean either that they were visible or that it was not making any finding on the visibility issue. It also said, “[T]he accused does have tattoos, ” but it is not clear whether it knew this because it had seen them at trial.
The trial court denied the motion for mistrial. It struck the question and instructed the jury to disregard it.
d. Details of the stabbing.
During her cross-examination of defendant, the prosecutor also asked:
“Q.... On December the 9th of 1990, ... you stabbed a man named Luis Hernandez, didn’t you?
“A. Yes.
“Q. You stabbed Luis Hernandez five times?”
Defense counsel objected. At sidebar, he moved for a mistrial.
The prosecutor responded, “I thought the Court’s ruling was that the stabbing could come in.... And I did not hear a limitation on anyone being allowed to ask how many times the victim was stabbed....”
The trial court disagreed: “We’re getting into evidence that was restricted, and I said what can come in, and... if any other things can come in, you need to ask me outside the presence of the jury.”
The trial court struck “[t]he last answer regarding the nature of the incident in 1990” and instructed the jury to disregard it.
Defendant had not actually answered the question yet.
B. Analysis.
“Under the federal Constitution, a prosecutor’s behavior deprives a defendant of his rights ‘when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’ [Citations.] Conduct that falls short of that standard ‘may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.’ [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 370-371.)
“‘To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm.’ [Citation.]” (People v. Redd (2010) 48 Cal.4th 691, 734.) However, “[w]hen a trial court sustains defense objections and admonishes the jury to disregard the comments, we assume the jury followed the admonition and that prejudice was therefore avoided. [Citation.]” (People v. Bennett (2009) 45 Cal.4th 577, 595.) This is true even when there are multiple instances of misconduct. (See id. at pp. 612, 614, 615, 616.)
Violating a prior evidentiary ruling, whether intentionally or not, constitutes misconduct. (People v. Friend (2009) 47 Cal.4th 1, 33; see also People v. Crew (2003) 31 Cal.4th 822, 839.) Here, the prosecutor disobeyed the trial court’s order to discuss its in limine rulings with all prosecution witnesses. She also sought to elicit evidence that the trial court had previously excluded regarding defendant’s tattoos and the details of the prior stabbing. Thus, she committed misconduct.
“But such conduct does not necessarily require a declaration of a mistrial. ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.] ‘A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.’ [Citation.]” (People v. Williams (2006) 40 Cal.4th 287, 323.)
Here, the trial court did not abuse its discretion by concluding that the misconduct was not prejudicial. In each instance, it sustained defense counsel’s objection, and it instructed the jury to disregard the excluded evidence. At the end of the trial, the trial court also gave the standard instruction that (1) the attorneys’ questions are not evidence; (2) if the court sustained an objection, the jury must ignore the question; and (3) if the court ordered testimony stricken from the record, the jury must disregard it. (CALCRIM No. 104.) We normally presume that the jury followed these instructions. (People v. Bennett, supra, 45 Cal.4th at p. 595.)
Moreover, the particular matters that were improperly aired in front of the jury were not incurably prejudicial. The mere fact that defendant had tattoos - in this day and age - was not prejudicial at all. The prosecutor’s question did not reveal the nature of the tattoos. Also, once again, the prosecutor never got an answer to her question.
The fact that marijuana was found in defendant’s house was mildly prejudicial but not incurably so. Defendant argues that the jury might have speculated that the shooting arose out of a drug transaction. The officer, however, specifically testified that there was only “a small amount” of marijuana, suggesting personal use. There was no evidence that Carriere had any reason to believe that defendant sold drugs or to know that the marijuana was there. Thus, the possibility that the jury would indulge in such speculation is, in itself, speculative.
As we have already held, the trial court erred by allowing the prosecution to impeach defendant with his prior stabbing; however, this evidence was not likely to affect the verdict. (See part II, ante.) Once the jury knew about this stabbing, it would hardly be surprised to learn that defendant had been previously incarcerated. Admittedly, the fact that defendant stabbed someone five times was slightly more prejudicial than the fact of the stabbing alone. However, the prosecutor never got an answer to this question; defense counsel objected immediately. Accordingly, this fact never actually came into evidence. Moreover, the jury knew that the stabbing had taken place 19 years earlier, when defendant was a juvenile. Thus, we see no reason why it would not have been able to follow the trial court’s instructions.
Finally, unlike the trial court, we have the benefit of knowing what verdict the jury ultimately rendered: It acquitted defendant of both murder and voluntary manslaughter, finding him guilty only of involuntary manslaughter. Thus, the jury appears to have accepted defendant’s testimony that the shooting occurred accidentally, while he was committing the offense of brandishing a firearm, a misdemeanor; it simply concluded that he was not acting in reasonable self-defense. This indicates that the jury was not influenced by passion and prejudice.
We therefore conclude that the trial court did not err by denying defendant’s mistrial motions.
IV
USE OF A JUVENILE ADJUDICATION AS A STRIKE PRIOR
Defendant contends that the use of his juvenile adjudication as a strike prior violated his right to trial by jury and due process.
As he acknowledges, the California Supreme Court has held otherwise. (People v. Nguyen (2009) 46 Cal.4th 1007, 1014-1028.) Accordingly, we are required to reject this contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
V
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J.MILLER J.