Opinion
Rehearing Denied Jan. 6, 1984.
Opinions on pages 831-852 omitted.
For Opinion on Hearing, see 210 Cal.Rptr. 631, 694 P.2d 744.
[197 Cal.Rptr. 333]Wilbur F. Littlefield, Public Defender, Alan H. Simon, Norman Tanaka, Gary M. Mandinach, Susan L. Burrell, Deputy Public Defenders, for appellant.
John K. Van de Kamp, Atty. Gen., Norman H. Sokolow, Cynthia Sonns Waldman, Deputy Attys. Gen., for plaintiff and respondent.
COMPTON, Acting Presiding Justice.
In this case we determine whether the passage of Proposition 8 by the electorate in June 1982, and the consequent amendment to the California Constitution (Art. I, § 28, subd. (d)) declaring that "relevant evidence shall not be excluded in any criminal proceeding," abrogated the "vicarious" exclusionary rule in this state. As will appear, we have concluded that by the enactment of article I, section 28(d), the people have withdrawn from the California courts the authority to suppress criminal evidence on independent state grounds. California therefore must reject, as have the vast majority of jurisdictions, the judicially declared rule of vicarious standing as an exclusionary remedy.
The case at bench is here on an appeal from an order continuing Lance W., a minor, as a ward of the juvenile court after he was found to have possessed marijuana for purposes of sale in violation of Health and Safety Code section 11359. His motion to suppress evidence pursuant to Penal Code section 1538.5 was denied on the ground that, in the wake of Proposition 8, he lacked standing to challenge the legality of a search that produced the contraband.
The facts adduced at the hearing on the motion to suppress are not in dispute. At approximately 7:00 p.m. on November 2, 1982, plainclothes Officers Scholtz and Smith drove an unmarked vehicle to El Dorado Park in Long Beach to investigate numerous citizen complaints of drug sales. Scholtz, a twelve year veteran of the Narcotics Division of the Long Beach Police Department, had previously witnessed, on at least fifty different occasions, minors trafficing in marijuana and other controlled substances in the park area.
From his vantage point, Scholtz observed Lance approach five different vehicles. Twice he saw what appeared to be a transfer of an unidentifiable object between the minor and the drivers, and on one occasion he noticed the minor remove an item from his waistband and hand it to the occupant of the vehicle. That same occupant then appeared to give Lance something in return. [197 Cal.Rptr. 334] Based upon his knowledge of the park and how narcotics transactions usually occur, Scholtz believed that the minor was engaged in the sale of drugs or marijuana.
Shortly thereafter, the fifth vehicle, a pickup truck, arrived and Lance once again began conversing with its occupants. When the officers moved their car closer to the truck, the minor approached and commenced talking with Scholtz' partner, Officer Smith. During their short discussion, Smith asked Lance if he knew where he could "get some smoke" (referring to marijuana). The minor looked at both men, appeared nervous, and said "No". He immediately returned to the pickup truck, placed his hand through one of the open windows, and dropped a plastic baggie inside the vehicle.
Although Scholtz was able to observe two people seated in the passenger section of the truck, from his position he could not see the contents of the plastic bag. The officers exited their vehicle and proceeded to the truck where Scholtz opened the driver's door and recovered the bag. Based upon his training and experience, Scholtz identified the contents as marijuana. Lance was subsequently arrested and searched. A second plastic bag also containing marijuana was found in his waistband along with $35 in currency in one of his pockets.
Following the search, the minor volunteered that the occupants of the truck were also in possession of marijuana. He further told the officers that he had been "kicked" out of his house and was simply "trying to make a living." Lance neither owned nor controlled the vehicle in which he deposited the subsequently seized contraband.
During the suppression hearing, Officer Scholtz opined, based upon his past observations of narcotics activity at the park, the packaging of the marijuana, the minor's statement, the minor's possession of $35, and the minor's behavior prior to arrest, that the marijuana found was possessed for sale.
In ruling on the motion, the trial court declared that in its view that if prior California law controlled, it would be compelled to suppress the evidence seized from the vehicle and from that would flow suppression of evidence seized from the minor's person, as well as his statements to the officers. Nonetheless, it denied the motion, reasoning that Proposition 8 removed the minor's standing under California's vicarious exclusionary rule to complain of the search of a vehicle neither owned nor controlled by him. We affirm.
This is not a case concerning the retroactivity of Proposition 8. The offense in question occurred several months after the effective date of Article I, section 28(d). (Cf. People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149.)
The Attorney General does not question the trial court's reasoning that the seizure of the contraband after defendant had jettisoned it into the truck was an unreasonable one. Hence we withhold further comment on those issues and address the impact of Proposition 8 on the facts of this case.
Since 1955, the primary source of state judicial decisions requiring exclusion of evidence in criminal proceedings has been the state constitutional provision against unlawful searches and seizures. Article I, section 13 of the California Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized." This provision is, of course, the state parallel to the Fourth Amendment of the federal Constitution. Nothing in its wording, however, expressly requires the exclusion of evidence as a remedy for violation of its mandate. Indeed, for over a century, from the date of its initial adoption in 1849, the provision was interpreted as not requiring the exclusion of evidence.
[197 Cal.Rptr. 335]In the seminal case in California of People v. Cahan (1955) 44 Cal.2d 434, 442, 282 P.2d 905, our Supreme Court held, as a "judicially declared rule of evidence," that evidence obtained in contravention of section 13 would henceforth be excluded in criminal proceedings. Although the United States Supreme Court later applied a similar rule to the states for the purpose of enforcing the Fourth Amendment (Mapp v. Ohio (1961) 367 U.S. 643), 81 S.Ct. 1684, 6 L.Ed.2d 1081, California courts continued to rely on the state Constitution under the doctrine of "independent state grounds" when they sought to expand on the more narrow applications of the exclusionary rule under federal law. (See, e.g., People v. Norman (1975) 14 Cal.3d 929, 123 Cal.Rptr. 109, 538 P.2d 237; People v. Brisendine (1975) 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099.)
In 1967, the California Legislature gave procedural shape to the rule by the enactment of Penal Code section 1538.5. Slightly more than a decade later in People v. Belleci (1979) 24 Cal.3d 879, 157 Cal.Rptr. 503, 598 P.2d 473, our Supreme Court overruled decisions permitting limited use of suppressed evidence for purposes other than determination of guilt theorizing that language in subdivision (d), stating that evidence suppressed pursuant to section 1538.5 "shall not be admissible against the movant at any trial or other hearing," constituted a limited "statutory exclusionary rule." Belleci thereby banned use of previously suppressed evidence for purposes of parole and probation, revocation, and sentencing.
Penal Code section 1538.5, subdivision (a)(1), and subdivision (d) provides: "(a) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (1) The search or seizure without a warrant was unreasonable.... If a search or seizure motion is granted pursuant to the proceedings authorized by this section, the property or evidence shall not be admissible against the movant at any trial or other hearing unless further proceedings authorized by this section, Section 871.5, Section 1238, or Section 1466 are utilized by the people."
Although recent years have witnessed a continual expansion of the exclusionary rule in this state, as attested to by decisions such as Belleci among numerous others, we think it necessary to emphasize that the rule itself was not devised for the express purpose of benefiting the defendant. Rather, it was premised upon the assertion that exclusion was the only available sanction which would effectively discourage and deter improper police methods and which would thereby protect the citizen's right to freedom from unreasonable searches and seizures guaranteed by the Fourth Amendment. "The rule is calculated to prevent, not to repair. Its purpose is to deter--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it." (Elkins v. United States (1960) 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669.)
Placed in this context, it is manifest that the exclusionary rule was devised as a remedy to safeguard Fourth Amendment rights through its deterrent effect on future unlawful police conduct, rather than a vindication of personal constitutional rights of the party aggrieved. (See United States v. Calandra (1973) 414 U.S. 338, 347-348, 94 S.Ct. 613, 619-620, 38 L.Ed.2d 561.) It was this rationale that led to the adoption of the "vicarious" rule in California.
For purposes of resolving the issues at hand, we need not trace in any detail the history of the decades long debate that has focused on the efficacy of the exclusionary rule and this state's use of the doctrine of independent state grounds to avoid the impact of federal high court decisions in the Fourth Amendment area. Suffice it to say that the debate in California has increased to a fever pitch in recent years, leading one jurist prophetically as it developed to warn: "A sudden switch to a California ground to avoid the impact of federal high court decision invites the successful use of the initiative process to overrule the California decision [197 Cal.Rptr. 336] with its concomitant harm to the prestige, influence, and function of the judicial branch of state government." (People v. Norman, supra, 14 Cal.3d at pp. 940-942, 123 Cal.Rptr. 109, 538 P.2d 237; Clark, J.)
Against this backdrop the People have amended the state Constitution to provide that relevant evidence shall not be excluded in any criminal proceeding. We think it obvious that the express language of this provision conflicts with the exclusionary remedy fashioned by the California courts to deter violations of the state search and seizure provision, and constitutes a declaration of the people that the costs of this remedy outweigh the benefits gained by its application. The result is that although the substantive rights guaranteed by the state Constitution are unaffected, the courts may no longer, consistent with article I, section 28(d), exclude evidence in criminal proceedings as a remedy for their violation.
Article I, section 28, subdivision (d) of the California Constitution became effective June 9, 1982, following the passage of Proposition 8 by a wide margin. It provides as follows: "Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press."
It is axiomatic, of course, that the voters of California cannot, by an initiative procedure, overrule decisions of the United States Supreme Court. Under the supremacy clause of the federal Constitution (U.S. Const., art. VI, clause 2) the exclusionary rule, made applicable to the states in Mapp v. Ohio, supra, must be obeyed. We think it clear that the intent of the drafters of article I, section 28(d) and of the electorate was to restore the supremacy of federal case law as enunciated by United States Supreme Court decisions in California. The "Truth-in-Evidence" provision does not repudiate Mapp, but abolishes the use of independent state grounds to exclude relevant evidence from criminal proceedings.
By abolishing the exclusionary rule under the California Constitution, the people have simply withdrawn one remedy for violation of state constitutional provisions. That they have the power to do so is unquestionable. Article II, section 1 of the California Constitution states: "All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require." That the electorate has, on numerous occasions, exercised its will to overrule decisions of the California Supreme Court under the state Constitution needs little discussion. We believe the passage of Proposition 8 was a clear repudiation, by the people, of state law embellishments on federal decisions which operate to exclude relevant evidence from criminal proceedings. Henceforth, if evidence is to be suppressed, it must be in accordance with decisions of the United States Supreme Court. Where evidence would be admissible under decisions of the high court, our state courts no longer have the authority to suppress it.
As an example, we point out that when the court ruled in People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, that the death penalty constituted cruel or unusual punishment under article I, section 17 of the state Constitution, the people responded by enacting article I, section 27, which declared it was not. The court has abided by that electoral mandate despite the repugnance expressed by some members of the court. (See People v. Frierson (1979) 25 Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587, concurring opinion of Mosk, J.
In determining whether evidence in a criminal proceeding would be admissible under the Fourth Amendment, decisions of the United States Supreme Court interpreting the federal Constitution are, of course, binding. (Calderon v. City of Los Angeles (1971) 4 Cal.3d 251, 258, 93 Cal.Rptr. 361, 481 P.2d 489; People v. Hannon (1977) 19 Cal.3d 588, 606, 138 Cal.Rptr. 885, 564 P.2d 1203.) In the absence of such controlling precedent, however, California courts are free to interpret the Fourth Amendment in a manner consistent with the purpose and intent of the Truth-In-Evidence provision of our state Constitution. Decisions of lower federal courts on federal questions may or may not be persuasive but in no event are they binding on California courts. (People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129; Gould v. People (1976) 56 Cal.App.3d 909, 919, fn. 6, 128 Cal.Rptr. 743; People v. Estrada (1965) 234 Cal.App.2d 136, 145, 44 Cal.Rptr. 165.) Further, opinions rendered by the Ninth Circuit Court of Appeals are no more persuasive than the decisions of other circuits simply because California is in the Ninth Circuit. (Debtor Reorganizers, Inc. v. State Board of Equalization (1976) 58 Cal.App.3d 691, 696, 130 Cal.Rptr. 64.)
[197 Cal.Rptr. 337]Article I, section 28(d) of the California Constitution now stands as the highest state authority on the exclusion of evidence in criminal matters. Prior to its enactment, however, state law permitted a defendant to attack any search and seizure, of any person, which led to evidence which could be used against the defendant in a criminal proceeding. A defendant therefore could attack the validity of a search of a codefendant, or even of an innocent third party. (See People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855; Kaplan v. Superior Court (1971) 6 Cal.3d 150, 98 Cal.Rptr. 649, 491 P.2d 1.) This judicially declared rule of standing, commonly referred to as the vicarious exclusionary rule, has been consistently rejected by the federal courts as impractical and unnecessary. To our knowledge only one other state, Louisiana, has experimented with the rule during the past 27 years.
Under federal law, Fourth Amendment rights are personal and may be asserted only by those who have a personal and legitimate expectation of privacy in the place searched or the property seized. (United States v. Payner (1980) 447 U.S. 727, 731, 100 S.Ct. 2439, 2443, 65 L.Ed.2d 468; Rakas v. Illinois (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387.) A defendant therefore must establish that he personally has been the victim of an invasion of privacy. (United States v. Salvucci (1980) 448 U.S. 83, 86-95, 100 S.Ct. 2547, 2550-2554, 65 L.Ed.2d 619.) This requires of him more than a mere subjective expectation of privacy; his expectation must be "legitimate," i.e., "recognized and permitted by society." (Rakas v. Illinois, supra, 439 U.S. at pp. 134-144, 99 S.Ct. at pp. 425-431.) Absent such proof, a court relying on the federal rule may not exclude the challenged evidence. (United States v. Payner, supra, 447 U.S. at pp. 731, 737, 100 S.Ct. at pp. 2443-2447; see also Alderman v. United States (1969) 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176.)
In our case, the minor argues against application of the federal law, contending that the issue of standing to contest an illegal search or seizure is a mere procedural rule unaffected by the enactment of article 1, section 28(d). We disagree.
In Rakas v. Illinois, the United States Supreme Court asked "whether it serves any useful analytical purpose to consider [the principle that Fourth Amendment rights are personal rights] a matter of standing, distinct from the merits of a defendant's Fourth Amendment claim." (Id. 439 U.S. at p. 138-139, 99 S.Ct. at p. 427-428.) Justice Rehnquist, writing for the Court, then proceeded to answer that inquiry in the negative, concluding that "the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing." (Id. at p. 139, 99 S.Ct. at p. 428.)
We think it clear that in determining whether a defendant is entitled to claim the protections of the exclusionary rule, the federal courts have effectively discarded reliance on the procedural mechanics of "standing." "The inquiry, after Rakas, is simply whether the defendant's rights were violated by the allegedly illegal search or seizure." (United States v. Salvucci, supra, 448 U.S. at p. 87., fn. 4, 100 S.Ct. at p. 2550, fn. 4.) That inquiry in turn requires a determination of whether the disputed search and seizure has impinged an interest of the defendant which the Fourth Amendment was designed to protect.
[197 Cal.Rptr. 338]Since standing is more properly subsumed under substantial Fourth Amendment doctrine, we cannot conclude that the vicarious exclusionary rule is merely procedural in nature and unaffected by article I, section 28(d).
However one wishes to characterize the vicarious exclusionary rule, the simple fact is that it is a rule which excludes relevant evidence. Our state Constitution now prohibits such exclusion. On numerous occasions, the United States Supreme Court has observed that the suppression of probative but tainted evidence exacts a costly toll upon the ability of the courts to ascertain the truth in a criminal case. (See United States v. Payner, supra, 447 U.S. at p. 734, 100 S.Ct. at 2445, and cases cited therein.) The high court's refusal to extend the benefits of the exclusionary rule to those defendants who cannot demonstrate that they have suffered violations of their own constitutional rights is perfectly consistent with the purpose and intent of Proposition 8. The very integrity of the judicial system and public confidence in that system depend on full disclosure of all facts, within the framework of the rules of evidence. The retention of the vicarious standing rule would expand the class of persons who may obtain suppression of relevant evidence thereby violating the intent of the electorate to see that those who commit criminal acts are "appropriately punished." (See Cal. Const., art. I, § 28(a).)
Having determined that this state's vicarious exclusionary rule was abrogated by the passage of Proposition 8, we must hold that the minor in the case at bench lacked standing to contest the legality of the search and seizure at issue here. The record before us firmly establishes that the minor failed to demonstrate any legitimate expectation of privacy in the area searched. Lance neither owned nor possessed any interest in the vehicle in which the contraband was first discovered. His mere presence at the scene conferred no special status that would entitle him to invoke the protection of the Fourth Amendment. (See United States v. Sanchez (1980) 635 F.2d 47, 63-64.)
The fact that Lance was charged with a possessory offense does not, of course, automatically confer standing. In United States v. Salvucci, supra, and Rawlings v. Kentucky (1980) 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 decided the same day, the defendants were charged with possessory offenses, i.e., possession of stolen property found in a parent's apartment and possession of drugs found in a friend's purse, respectively. In holding that neither defendant had a legitimate expectation of privacy in the places searched and therefore no standing to contest the search, the court overruled the automatic standing rule of Jones v. United States (1960) 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, which conferred standing on one who was charged with a crime of possession.
In the present case the burden was on the minor to establish his standing to object to the search. He failed to do so and his motion to suppress was properly denied. Once Officer Scholtz had confirmed his suspicion that the plastic bag placed in the pickup truck contained contraband, he had sufficient probable cause to arrest Lance and conduct a search of his person. The marijuana seized and the minor's spontaneous statements were properly admitted into evidence. The facts adduced at the suppression hearing, and offered into evidence by way of stipulation at the adjudication phase of the proceedings, were more than adequate to establish that Lance was in possession of marijuana for purposes of sale. The court therefore properly sustained the petition charging the minor with the commission of that offense.
We turn now to the minor's remaining contention that the juvenile court erred when it ordered that he be committed to a community camp program forthwith and, as a condition of probation, directed that upon his release therefrom he was to spend not less than thirty days in juvenile hall. Imposition of that time was stayed one [197 Cal.Rptr. 339] year until the date of the minor's annual review.
We note here that subsequent to the denial of the minor's suppression motion on the drug charge but before disposition, a separate petition was filed alleging that he had committed battery in violation of Penal Code section 242. Lance ultimately admitted the truth of these allegations. At the disposition hearing, the court ordered that the minor could not be held in physical confinement for a period to exceed three years and two months.
On appeal, as he did below, the minor argues that the imposition of thirty days in juvenile hall in addition to a full time camp commitment constitutes a double sentence and attempts to circumvent the supplemental petition requirements of Welfare and Institutions Code section 777.
The juvenile court is vested with broad discretion in imposing conditions of probation, and its exercise of that discretion will not be disturbed in the absence of a manifest abuse. (In re Todd L. (1980) 113 Cal.App.3d 14, 169 Cal.Rptr. 625; In re Bacon (1966) 240 Cal.App.2d 34, 49 Cal.Rptr. 322.) We can find no such abuse here.
It is well established that a condition of probation imposing time in juvenile hall is proper and "serves the protective goal of the Juvenile Court Law." (In re Ricardo M. (1975) 52 Cal.App.3d 744, 749, 125 Cal.Rptr. 291.) Although the imposition of such time usually constitutes an alternative to more serious measures of confinement, we believe it can serve an effective rehabilitative purpose even when combined with initial placement in a community camp program. As designed here, the stayed probationary term serves to encourage compliance with the other conditions imposed by the court. This clearly comports with the protective goal of juvenile proceedings and helps insure that the minor will not become a criminal in later years, but rather a useful and productive member of society. (See In re Ricky H. (1970) 2 Cal.3d 513, 520, 86 Cal.Rptr. 76, 468 P.2d 204; In re Ricardo M., supra, at p. 749, 125 Cal.Rptr. 291.)
Juvenile court dispositions, unlike their adult counterparts, are designed to accomplish rehabilitation and treatment, not punishment. (In re Darryl T. (1978) 81 Cal.App.3d 874, 146 Cal.Rptr. 771.) In the instant case, the court specifically found that the probationary term at issue here was a necessary, fitting and reasonable condition to enhance the minor's chance of success. In view of Lance's problems with truancy, narcotics, and other delinquent behavior, the imposition of a stayed commitment to juvenile hall was appropriate.
The minor correctly points out that the appellate courts of this state have "cast a jaundiced eye" on attempts to circumvent the supplemental petition process set forth in Welfare and Institutions Code section 777. Cases of recent vintage have disapproved self-executing conditions of probation imposing juvenile hall time without a hearing (In re Gerald B. (1980) 105 Cal.App.3d 119, 164 Cal.Rptr. 193; In re Mark M. (1980) 109 Cal.App.3d 873, 167 Cal.Rptr. 461) and strongly criticized the practice of continuing the disposition to a date when the court is able to ascertain the minor's progress and decide whether or not to impose confinement. (In re Ruben A. (1981) 121 Cal.App.3d 671, 175 Cal.Rptr. 649; see also In re Phillip A. (1980) 109 Cal.App.3d 1004, 169 Cal.Rptr. 88; In re Willie T. (1977) 71 Cal.App.3d 345, 139 Cal.Rptr. 439.)
Analogizing to these cases, the minor argues that the court's disposition order improperly attempts to circumvent the supplemental petition process. We cannot agree.
Pursuant to Welfare and Institutions Code section 777, subdivision (e), enacted [197 Cal.Rptr. 340] by the Legislature in 1981, the filing of a supplemental petition is no longer necessary to modify a previous order and to commit a minor for thirty days or less to a county institution (often referred to as "stayed Ricardo M. time."). For such a disposition, the court must have made and stayed the detention order at the original disposition and the minor must have violated a probationary condition. A separate hearing is then conducted under Rule 1394 of the California Rules of Court to determine whether the juvenile has violated terms of his probation.
Welfare and Institutions Code section 777, subdivision (e) provides as follows: "An order changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative or friend and directing placement in a foster home, or commitment to a private institution or commitment to a county institution, or an order changing or modifying a previous order by directing commitment to the Youth Authority shall be made only after noticed hearing upon a supplemental petition.... (e) The filing of a supplemental petition and the hearing thereon shall not be required for the commitment of a minor to a county institution for a period of 30 days or less pursuant to an original or a previous order imposing a specified time in custody and staying the enforcement of the order subject to subsequent violation of a condition or conditions of probation, provided that in order to make the commitment, the court finds at a hearing that the minor has violated a condition of probation."
In the present case, Lance would be entitled to a hearing to determine whether he had violated any term of probation before the stayed juvenile hall time could be imposed. This procedure more than adequately protects the juvenile's rights to notice and to factual findings to support the imposition of the Ricardo M. time. There was no error.
The judgment is affirmed.
BEACH and GATES, JJ., concur.