Opinion
B228436
02-16-2012
THE PEOPLE, Plaintiff and Respondent, v. TOMMY COLE, Defendant and Appellant.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Stephanie A. Miyoshi and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA354746)
APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Kennedy, Judge. Reversed.
Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Stephanie A. Miyoshi and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
After he was arrested for murder with a gun, appellant Tommy Cole's recorded telephone conversations with his brother and others contained his references to getting rid of a "steak," or "stake." Over objection, the trial court permitted a police detective to testify as an expert in jailhouse slang, telling the jury that although he had never heard anyone use the word "steak" (or "stake") to mean "gun," because Cole had been charged with murder he believed Cole had used the word with that meaning. We conclude that the admission of that testimony was prejudicial error. We therefore reverse the judgment.
Statement of the Case
Appellant Tommy Cole was charged by information with murder in the first degree (Pen. Code, § 187, subd. (a)), and three firearm enhancements causing the offense to be classified as a serious felony and a violent felony. (Pen. Code, § 12022.53, subds. (b), (c) & (d).) He pled not guilty and denied the firearm allegations.
All statutory citations are to the Penal code unless otherwise specified.
At a trial in which Cole presented no defense, a jury found him guilty of the lesser included offense of second degree murder (§ 187, subd. (a)), and found the firearm enhancements to be true. The trial court denied his motion for new trial. He was sentenced to 15 years to life in prison (§ 190), plus an additional 25 years to life for the enhancements. (§ 12022.53, subd. (d)).
Cole appeals from the judgment, contending that two grounds require reversal of his conviction: (1) the trial court prejudicially erred by permitting a police detective to testify as an expert that a term he used in conversations from the jail—"steak"—was a slang reference to a gun; and (2) that the evidence was insufficient to identify him as Brown's murderer, because the sheriff's records from the global positioning system ("GPS") monitor he was wearing showed unequivocally that he was not at the site when the murder occurred.
Statement of Facts
In accordance with the applicable standard of review, we state the facts that support the judgment. (People v. Hatch (2000) 22 Cal.4th 260, 272; People v. Bradford (1997) 15 Cal.4th 1229, 1329)
In the early morning hours of March 29, 2009, Marcus Jackson-Whitaker was stationed inside the closed front door of the Black Silk Social Club, a small after-hours nightclub at 2043 West Manchester Avenue in Los Angeles, as a security guard, controlling entry to the club. Sometime after 2:00 a.m. Melvin Falley arrived outside, where some 15 or 20 people had gathered to socialize or await entry. Among them was Antwine Brown, a large man known by his friends as Twon or Cheeseburger. Brown was leaning on a parked car eating chicken.
Brown was a little over 6 feet 1 inch tall, and weighed 345 pounds. Cole was about 6 feet 2 inches tall, and was 262 pounds when he was arrested. By comparison to Brown and Cole, Falley was small, about 5 feet 6 inches tall and 137 pounds.
Falley stopped to talk with Brown, a longtime acquaintance. As they spoke, appellant Tommy Cole—also a large man—approached Falley, accusing him of boasting about having beaten Cole in a fight they had had about two months earlier. Falley adamantly denied the charge. Shaken by the encounter, Falley entered the club, sat at the bar, and quickly ordered tequila.
When Jackson-Whitaker opened the club door to admit patrons a while later, he saw Cole shouting angry insults at Brown, who appeared to him to be paying Cole no attention. When Cole took a few steps back, Jackson-Whitaker thought he was leaving; but 20 or 30 seconds later, after Cole was out of his view, he heard "gunshots ring out." Whitaker-Jackson could see the gun, and the hand that held it, as the shots were fired. But Cole was out of his view.
The evidence indicated that Jackson-Whitaker had initially told the police that he had never before seen the person who shot Brown, and that his initial description of the shooter's size, age, skin tone, and dress, was not entirely consistent with those attributed to Cole.
Falley heard the shots from inside the club just as he threw back his second shot of tequila. Brown staggered to the club doorway and collapsed. Brown died from a single gunshot to his abdomen. Someone called 911 from the club at 3:48 a.m.
After Cole's arrest, his telephone and jail visit conversations were monitored and recorded. In a telephone conversation with an unidentified woman, Cole admitted that he was "in the area" of the Black Silk club at times that night, as his ankle-bracelet would show. He complained that word had spread that "they" had kicked Cole's ass at a liquor store. He said that "Cheeseburger always calling some more niggers to press up on me with him" (meaning to give him a hard time), and that "if they would've kept pressing up on me" he "probably would've done something to him in the long run, though."
Cole was wearing an ankle-bracelet GPS monitor on the date Brown was shot, monitoring his location on a minute-by-minute basis to within 49 feet.
In a conversation with a visitor Cole called Squirrel, he said to tell Cole's brother (Ralph, or Red) that "he got to throw away all that, he got to throw away that [] steak that I got, he got to throw it away because it's no more good. Got to make sure that he, uh, do what he got to do with it, man."
In a later conversation, Cole told Red, "Hey, I talked to, you got the, uh, take care of that steak, man." Cole continued, with interspersed confirmations from Red: "Before knucklehead get in and try to cook it, you know what I'm saying?" "And get cracked with it, you know what I'm saying?" "So . . . I talked to Squirrel and . . . and he can give you a helping hand." "You got all the stuff to do it with," he told Red. "Yeah, you need to get on that as soon as possible. Huh?"
The telephone conversation recording was played for the jury, which was instructed that the recording, not the transcript of it, constituted the evidence of the conversation.
And in a telephone conversation with an unidentified man, Cole noted that someone (apparently Whitaker-Jackson) had described him as having been wearing a blue hat, gray jacket, white shirt, black pants, and blue shoes. But Cole said that instead on the night of the shooting he had been wearing a black hoodie, a black Tiger Woods hat, blue jeans, and black shoes, and he thought that his picture in those clothes might have been caught on a local gas station camera that night.
The evidence at trial included a GPS record of Cole's locations, showing that from about 3:20 to 3:27 a.m. Cole was in the 2400 block of Manchester Avenue, and that he was there again briefly from about 3:41 a.m. to 3:43 a.m., shortly before the 911 call.
Discussion
1. The Trial Court Erred In Permitting A Police Detective To Testify As An Expert That The Word "Steak" Was Slang For "Gun."
Officer Doster was assigned as a detective to the Criminal Gang Homicide Division of the Los Angeles Police Department. He was permitted to testify, over objection, that from listening to Cole's recorded conversations about "getting rid of some steak," Doster believed that "he's talking about getting rid of a gun."
As foundation for this testimony, Doster testified that he had monitored jailhouse phone conversations with respect to other cases in the past, and had heard people refer to guns by various slang terms, including "gap," "strap," "four-pounder," "burner," "heat," "heater," and perhaps others. But in his 14 years as a police officer, he had never heard of anyone refer to a gun as a "steak."
Doster's opinion, that "gun" is what Cole was referring to when he said "steak" (or "stake"), was not based on his training and experience with urban slang or linguistics, nor on any knowledge that Cole (or anyone else) used those terms synonomously. His opinion, he testified, was based only on "the totality of the situation"—that Cole "was arrested for murder and he's talking about getting rid of a steak and it's no good." "I mean, it's my conclusion that he's talking about getting rid of a weapon."
An expert witness is one with "special knowledge, skill, experience, training, or education" on the subject of his or her testimony. (Evid. Code, § 720.) To justify the use of expert testimony, the subject of the testimony must be "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact," and within the witness's expertise. (Evid. Code, § 801; People v. Gardeley (1996) 14 Cal.4th 605, 617.) Evidence Code section 801, subdivision (b), limits expert opinion testimony to opinions "'[b]ased on matter . . . perceived by or personally known to the witness or made known to [the witness] at or before the hearing . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which [the expert] testimony relates . . . .'" (Ibid.) The trial court has broad discretion to determine whether the proffered opinion testimony meets these requirements. (People v. Singleton (2010) 182 Cal.App.4th 879, 924-925.)
Respondent contends that when gang terminology or slang is relevant to an issue in the case, expert testimony is admissible to explain its meaning. Cole's use of slang therefore was a proper subject for Detective Doster's expert testimony, "since the jurors were unlikely to know that many different terms are used by inmates to refer to guns, especially on recorded lines." Because in his 14 years of experience Detective Doster "had heard many different slang names for guns," Respondent argues, "a sufficient foundation existed for his opinion" that Cole meant "gun" when he said "steak" in the recorded telephone conversation.
As noted above, Detective Doster testified to a handful of slang terms that sometimes are used to refer to guns, none of which were the word "steak," or "stake." He said nothing about "recorded lines," and there was no evidence of gang involvement in this case.
The primary difficulty with Respondent's contention on this point is that Detective Doster's general expertise "regarding the use of slang terms for guns," did not extend to the subject of his challenged testimony—the meaning of the slang term "steak," or "stake." Doster's testimony was offered not to tell the jury what other slang terms are sometimes used to describe guns, but to establish that "steak," or "stake"—the slang term Cole used—was such a term.
But on that subject, Detective Doster had no relevant information, and therefore no admissible opinion. He denied knowing anything about the use of that term as a reference to a gun, and he thus knew nothing about the subject for which his testimony was offered. Whatever his expertise might have been with respect to other slang terms used to identify guns, he had no special knowledge with respect to the term Cole had used.
In permitting Detective Doster to testify that Cole meant "gun" when he said "steak" (or "stake"), the trial court appropriately held a hearing under Evidence Code section 402, looking to Detective Doster's testimony "as to how he comes to that conclusion." "I mean, I can understand how one might think so. I don't know." But Detective Doster's testimony explained only what the trial court had already observed: Doster, like the trial court, could "understand how one might think so," because Cole had been arrested for murder with a gun, "and he's talking about getting rid of a steak and its no good." The "steak," Doster concluded (apparently reasoning backward), therefore must be the gun that the prosecution sought to persuade the jury Cole had used to shoot Brown.
Detective Doster's opinion thus was not "[b]ased on matter . . . perceived by or personally known to the witness or made known to [the witness] at or before the hearing," for he had no knowledge that the slang term "steak" or "stake" had ever been used to describe a gun. Nor is the inference on which he relied to conclude that Cole was referring to a gun—the inference drawn from Cole's arrest—"of a type that reasonably may be relied upon by an expert in forming an opinion" on the meaning of the slang term "steak" or "stake," as the Evidence Code requires. No expertise or experience with respect to the slang terms that criminal suspects use to describe their weapons led Doster to conclude that Cole used the term "steak" or "stake" to refer to his gun; it was simply his conclusion that Cole—an accused murderer—would want to dispose of his gun. The inference on which Doster's conclusion rested therefore was exactly the same inference that his opinion testimony was intended to validate, and that the prosecution hoped the jury would draw: Because Cole had been arrested for murder with a gun, he must have meant "gun" when he urged his brother to throw it away "[b]efore knucklehead get in and try to cook it . . . ."
Nor is it even clear (and Respondent does not argue) that Detective Doster's opinion on the subject was "sufficiently beyond common experience" of jurors that it "would assist the trier of fact," as the Evidence Code requires. (Evid. Code, § 801.) The issue is not whether Doster could reasonably conclude that Cole used "steak" or "stake" as slang to mean "gun"; rather, it is whether Doster's conclusion added any expert insight to what the jury already knew. Did the jurors need an expert to tell them that someone who is charged with murder may, if he is guilty, want to dispose of his murder weapon?
The conclusion that Cole was talking about a gun might be an appropriate inference to be drawn from the circumstances; but it was not an appropriate subject for expert testimony. It was based only on Detective Doster's conjecture, not any expertise. For all his testimony shows, Doster was no more qualified than jurors to determine what Cole was talking about, and whether to conclude that he was referring to a gun. As the prosecutor argued to the jury, it is clear from common sense alone, even without Doster's testimony, "that he is not talking about a piece of meat . . . that has gone bad." The reasonable conclusion that Cole would have a motive to dispose of his gun if he were guilty of murder does not transform Doster's conclusion into admissible expert opinion testimony. (People v. Torres (1995) 33 Cal.App.4th 37, 47 [expert's opinion as to defendant's guilt is of no assistance to the jury].)
This is illustrated by the decision in Kotla v. Regents of University of California (2004) 115 Cal.App.4th 283 (Kotla). In that case the trial court had permitted an expert in the fields of human resources management and industrial psychology to testify that certain circumstances shown by the evidence (including evidence showing, for example, a motive to retaliate) indicated that the defendant's discharge of the plaintiff was retaliatory. The Court of Appeal concluded that the testimony satisfied neither the requirement that the subject of the testimony must be sufficiently beyond common experience that the expert's opinion would assist the jury, nor the requirement that the opinion must be based on matter on which an expert would reasonably rely in forming such an opinion. (Id. at pp. 291-292.)
In Kotla, supra, the record did not show that the expert had "any special expertise for weighing the evidence of motive . . . ." So too in this case, Detective Doster's expertise was in slang words used by gangs; he had no special expertise with respect to whether anyone would use the word "steak" or "stake" to mean "gun" (a circumstance he had never before encountered or heard of). For that reason, his "opinions about the evidence in this case did not offer the jury anything 'more than the lawyers can offer in argument.'" (Kotla, supra, 115 Cal.App.4th at p. 294, quoting In re Air Crash Disaster at New Orleans, La. (5th Cir. 1986) 795 F.2d 1230, 1233.) "Absent unusual facts, it must be presumed that jurors are capable of deciding a party's motive for themselves without being told by an expert which finding on that issue the evidence supports." (Kotla, supra, 115 Cal.App.4th at p. 293; see also People v. Johnson (1993) 19 Cal.App.4th 778, 786 ["The proposition that prison inmates may lie certainly is not outside the common understanding of jurors, and a jury does not need expert testimony to assist it in ascertaining the relevant facts"]; People v. Czahara (1988) 203 Cal.App.3d 1468, 1478 [whether provocation is sufficient to result in irrational violence "is not a subject sufficiently beyond common experience that the opinion of an expert would assist the trier of fact"]; People v. Brown (1981) 116 Cal.App.3d 820, 828-829 [police expert could appropriately testify to street meaning of the term "runner"; but court erred in permitting expert to testify that circumstances showed defendant was working as a "runner"].)
We therefore conclude that because Detective Doster had no personal knowledge or foundation for the opinion to which he testified, and because the jury needed no expert to help it evaluate whether Cole might be motivated to talk about a gun, his opinion testimony did not meet the threshold requirements for admissibility. The inferences to be drawn from Cole's use of the term "steak" or "stake" were a matter of argument for the jury; Detective Doster's opinion on the subject was of no greater value—or admissibility—than anyone else's. Consequently it was error to admit this testimony. 2. The Error In Admitting Detective Doster's Testimony Was Not Harmless.
The parties agree that the appropriate standard for determining whether error of this sort requires reversal is set forth in People v. Watson (1956) 46 Cal.2d 818, 836: The question is whether after examining the entire cause, the court concludes that it is reasonably probable that the jury would have reached a result more favorable to the appealing party in the absence of the error. (Ibid.; People v. Breverman (1998) 19 Cal.4th 142, 177.)
The parties do not agree on the outcome of this query. Respondent argues that it is not reasonably probable that Cole would have obtained a more favorable result without that testimony, for three reasons: First, it makes sense to conclude that he used the term "steak" or "stake" to refer to a gun (rather than, for example, a drug stash), because it is reasonable to conclude that after being charged with murder Cole might want to dispose of a gun. Second, Detective Doster's opinion had little potential for prejudice, because he admitted he had never heard this use of the term. "Thus, the jury had all of the information that it needed to evaluate the merits of the detective's opinion." And third, because the evidence of Cole's guilt was compelling.
Cole argues in his opening brief that his use of the term "steak" or "stake" suggests a reference to disposal of a drug stash, rather than a gun. And his reply brief notes that while dictionaries do not list a gun as a definition for "steak," at least one online dictionary lists marijuana as being among the street meanings of that term. (Urban Dictionary, http://www.urbandictionary.com/define.php?term=steak&page=4.)
The first two of these suggested reasons reinforce the conclusion that it was error to admit Detective Doster's opinion testimony, but they do not address the question whether prejudice resulted. The potential for prejudice arose, not because the conclusion to which Doster testified was unreasonable, but because his testimony gave unjustified weight to that conclusion. Undoubtedly the prosecution would always like to call an experienced police detective to give an "expert" opinion that reinforces the prosecution's theory of the defendant's guilt—in effect, to argue from the witness stand that the prosecution's theory makes sense. The potential for prejudice is increased, not reduced, when the opinion is drawn from deduction without any basis in the witness's particular expertise, knowledge, or experience, for then there is even less justification for permitting it to be expressed from the witness stand, and it is all the more clear that it serves only as argument, not evidence.
The error in permitting Detective Doster to express his opinion to the jury therefore clearly carried some potential for prejudice. To determine whether the record reflects actual prejudice—whether it is reasonably probable that the admission of Doster's expert testimony affected the outcome of the verdict—we examine the evidence supporting Cole's guilt.
Jackson-Whitaker's eyewitness testimony, even if believed, was less than conclusive that Cole was the shooter. He testified that he was in charge of security at the door of the Black Silk Club in the early morning hours of March 29, 2009. When he opened the club's front door at one point, he saw Cole (who he had seen at the club before) on the sidewalk about 20 feet away, talking angrily to Brown, who appeared to be ignoring Cole. Cole moved to the left, out of Jackson-Whitaker's view. About 20 or 30 seconds later, Jackson-Whitaker saw "[the gun] in a hand as it was being fired," fatally wounding Brown. But he also said "I did not see who shot the gun." "I seen a gun shoot four shots, but I did not see the defendant shoot the shots."
A police detective had his recollection refreshed that Jackson-Whitaker had initially said that he had never seen the shooter at the club before the morning of the shooting.
Jackson-Whitaker confirmed that he had told the police the morning of the shooting that when "the guy" started walking backward from Brown, "I figured he was going to just, you know, walk away, but he started shooting about four shots." The statement he had written out for the police at that time had said that "[t]he gentleman argued with the victim. From there shot four shots at the victim and fled the scene [sic]." Jackson-Whitaker explained that when he indicated to the police that it was Cole who fired the gun, he was basing his speculation on Cole's presence, his argument with Brown, the fact Cole was "backpedaling" in the direction from which he saw the shots fired, and having seen the gun.
Jackson-Whitaker also confirmed that he had told the police that the person who had argued with Brown (apparently the shooter) "probably had to be almost 40, 40, pretty old"; that he was wearing a blue baseball cap, a hoodie, a white T-shirt, and jeans; that he was about 6 feet to 6 feet 2 inches tall; and that he was heavy-set—taller and heavier that Brown—with his stomach hanging over his pants. He testified that when he was shown photos of Cole, he had identified him as the man who had argued with Brown. He told the police, "[i]f I had to say that anybody looked familiar [as the man he had seen earlier that night, talking with Brown and Falley], I would have to say the guy in the upper right corner [apparently Cole's photo]."
The evidence was that Brown was about 80 pounds heavier than Cole. Although the defense sought to bring out apparent discrepancies in the identification of the age, size, skin color, and facial hair of various people who could be observed in photos and in the courtroom, the record is less than clear on these points.
Falley was called as a witness to testify about his argument a few months earlier, in which he had shoved Cole, apparently in order to suggest that it had some undefined connection to Cole's shooting of Brown. Falley denied telling the police that Cole had accused him of bragging about the earlier fight, and denied having any strong words with Cole. "He didn't ask me was I bragging about the fight 'cause it wasn't a fight." The relevance of Falley's earlier confrontation with Cole is unclear, but is not an issue in this appeal.
Steven Reinhart, a parole agent who was the Regional GPS Coordinator for the California Department of Corrections and Rehabilitation, testified to Cole's location at various times on the morning of the shooting. He testified that from the GPS bracelet Cole was wearing his location and movement on March 29, 2009 could be determined to within about 49 feet.
When Reinhart identified himself as a parole agent, Cole's counsel challenged the improper disclosure of Cole's status as a parolee—prompting sidebar apologies and mea culpas from the prosecution. Cole's counsel eventually declined on tactical grounds to ask for a corrective instruction to the jury. The trial court concluded that the error did not justify granting Cole's new trial motion, and it is not an issue here.
Reinhart testified that from 3:20 a.m. to 3:27 a.m., Cole was in the 2400 block of West Manchester Boulevard, the location of the Black Silk Social Club. At about 3:35 and for a few minutes after, Cole was in the 3500 block of Manchester Boulevard, a location later identified as a community in which Cole lived with his brother. Then, from 3:40 and 24 seconds to 3:43 and 17 seconds a.m.—a little less than three minutes—Cole was again in the area of the Black Silk Social Club. The 911 call from the club reported the shooting at 3:48 a.m.
Respondent's brief does not dispute the times argued in Cole's opening brief; its only mention of the GPS evidence is that Cole "was at or very close to the Club from 3:41 until 3:44 a.m," shortly before the 911 call reported the shooting.
Cole argues on appeal that the GPS evidence shows that he could not have been the shooter, or at the very least casts substantial doubt on that conclusion. While the GPS evidence confirms his appearance outside the club at about 3:20, for long enough to have talked with Falley and Brown (as he was seen doing some time before the shooting), he was far away from the club until 3:41 a.m. Then, although he was again near the club for something less than three minutes until about 3:43, that was too long before the 911 call was made—almost five minutes later, at about 3:48—to justify a determination that he was present at the time of the shooting.
We cannot concur with Cole's argument either that the GPS evidence is inconsistent with the jury's conclusion that he was the shooter, for three reasons:
First, the GPS evidence shows that Cole was at or near the club for a few minutes, about five minutes before the shooting was reported. It was up to the jury to decide whether it was possible for him to have shot Brown in front of the club during that time.
Second, there was no evidence that the times recorded by the GPS device were coordinated with the time reported for the 911-call intake. Again, it was up to the jury to determine the weight to be afforded that evidence.
And there is another reason that we must reject Cole's contention that the GPS evidence is inconsistent with his conviction: This court cannot accept counsel's interpretation of what the GPS does or does not show as to Cole's location and speed at any particular time, without further evidentiary support. Neither Reinhart nor any other witness testified to the distances that counsel argues on appeal are shown by the GPS video record; and neither Reinhart nor any other witness testified about the speeds Cole was traveling at any relevant times. From the record on appeal it is not clear how—or whether—that information could be determined from the GPS video record. We therefore are unable to confirm either the accuracy or the relevance of many of the factual contentions on which Cole's argument depends.
A chart, apparently prepared by Cole's appellate counsel from Exhibit 6a for inclusion in the reply brief, purports to show Cole's locations at about two-minute intervals, and the speeds at which Cole was traveling, from 3:15 to 3:48 a.m., on March 29, 2009.
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From this examination of the evidence supporting the judgment, we conclude that the error in admitting Detective Doster's expert opinion testimony about the meaning of the terms used in Cole's post-arrest conversations cannot be found to be harmless. It is clear that the evidence is more than sufficient to have persuaded the jury, beyond a reasonable doubt, that it was Cole who shot Brown in front of the Black Silk Social Club—particularly because it concluded (as Detective Doster did) that Cole had urged his brother to dispose of his gun, and that the absence of a murder weapon from the evidence might be explained by that conversation. It is not as clear, however, that the jury would necessarily have reached that conclusion without the improper influence of Detective Doster's expert opinion testimony on the subject; nor can it be said to be clear that without the improper influence of Detective Doster's supposed expertise the jury would have found that the other evidence was persuasive of Cole's guilt beyond a reasonable doubt.
In other words, Detective Doster's erroneously admitted expert opinion might have affected the jury's evaluation of the uncertain and disputed evidence identifying Cole as the shooter. We therefore conclude that it is reasonably probable that the jury would have reached a result more favorable to Cole if it had not been exposed to Detective Doster's opinions about the meaning of his conversations from jail. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Breverman, supra, 19 Cal.4th at p. 177.)
Disposition
The judgment is reversed.
NOT TO BE PUBLISHED.
CHANEY, J. We concur:
MALLANO, P. J.
JOHNSON, J.