Opinion
F077929
06-22-2020
THE PEOPLE, Plaintiff and Respondent, v. KELY RENEE GARCIA, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Timothy L. O'Hair, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF162144A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Timothy L. O'Hair, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Appellant/defendant Kely Renee Garcia poured gasoline on Richard Sanchez and set him on fire. Sanchez died from his injuries.
Defendant was charged with first degree murder (Pen. Code, § 187, subd. (a); count 1), and receipt of a stolen vehicle (§ 496d, subd. (a); count 2). Count 2 was dismissed prior to trial for insufficient evidence. A jury convicted defendant on count 1 of the lesser included offense of involuntary manslaughter. (§ 192, subd. (b).) Defendant was sentenced to the upper term of four years in state prison.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant contends (1) an arson expert was improperly permitted to testify the fire was intentionally set, (2) the instruction on involuntary manslaughter was incomplete, and (3) defense counsel improperly conceded defendant's guilt during closing argument. We affirm.
FACTS
On November 9, 2015, at approximately 1:45 a.m., Cecilio Flores was riding his bicycle home from his then-girlfriend's house when he saw a man sitting on the sidewalk on fire. The man was cussing. A woman was sitting near him on the curb, and Flores did not see anyone else in the area. He said to the woman, " 'There's a guy on fire,' " and she responded, stating, " 'So what,' " or " 'So, whatever.' " Flores rode his bicycle around the corner, where he encountered Police Sergeant Charles Sherman and informed Sherman of the man on fire.
When Sergeant Sherman arrived at the scene, he saw a man, later identified as Sanchez, burning. Next to Sanchez was a partially burned gas can. Sanchez had no clothes on, but clothes that were next to and underneath him were still burning. His skin was severely melted and was falling off. He appeared to be in severe pain and was screaming, " 'She burned me. She poured gas on me.' " He was near a white, four-door Nissan. The doors of the Nissan were closed, and the interior was on fire and filled with smoke. Sherman saw a woman, who he identified in court as defendant, sitting approximately 30 feet away from the man. She was wearing a bra and underwear, and was calmly sitting on the curb, putting on pants.
When other officers arrived on scene, Sanchez was moved away from the Nissan, and defendant was detained in a patrol vehicle. Sanchez continued to say, " 'She burned me,' " and " 'She poured gas on me.' " Defendant smelled of gasoline. Sergeant Sherman asked defendant what going on, and she stated, " 'I don't know. The smell of baby powder was really offensive.' " She stated she preferred the smell of gas. When Sherman asked defendant how she lit the victim on fire, she said, "I don't know what happened. Um, I just - my hands went over and, um - I don't know. I don't know what happened." She stated her intent was to kill the smell. Defendant stated that she also poured the gas on herself and, when Sherman asked whether defendant had planned to light herself on fire, she said, " 'Well, I don't know. We were gonna light up.' "
After the fire was extinguished, lead investigator Sergeant Nathan McCauley examined the vehicle and the surrounding area. He noted the vehicle was significantly burned, primarily on the driver's side and around the driver's seat. Outside the driver's side door, he found a jacket that appeared to have been melted and burned, a melted red gas can, some metal magnetic beads, a burnt cell phone, and portions of a burnt wallet. A number of personal items were in the front passenger area, including a purse or bag. Inside the car, he also found paperwork bearing defendant's name, additional metal beads, two lighters, a small bag of marijuana, and a digital scale commonly used to measure illegal narcotics. Inside the trunk, he found what appeared to be the remains of a coyote and part of a cow. He found a white Bic lighter outside the vehicle on the passenger side.
Meanwhile, defendant was transported to the police station. There, she was given a change of clothes because her clothes were drenched in gasoline. She had what appeared to be burn marks on her hands. A search of her person revealed a used methamphetamine pipe in her bra. Defendant exhibited odd behavior and made odd statements. The officer supervising the clothing change believed defendant's behavior was consistent with methamphetamine intoxication.
Defendant was interviewed by Police Sergeant Kenneth Sporer and Fire Captain Victor Mabry. During the interview, defendant stated she had just arrived in Bakersfield from Texas. She exhibited behaviors suggesting she was under the influence of methamphetamine, including fidgeting, rapid talking, agitation, and inability to focus. She made a variety of nonsensical statements. Sporer understood that defendant and Sanchez met on the night of the incident and "somehow ended up in the car together," where defendant became angry because Sanchez smelled of baby powder and because of "something to do with marbles" and things being stolen from her car. Defendant reported she was seated in the driver's seat of the car, and she had the gas can on the seat between her legs. She admitted the fire started "[w]ith gasoline and a lighter," and that she used her lighter to set the gasoline on fire. Defendant reported she had been diagnosed with schizophrenia, bipolar disorder, "anaphylactic, bulimia and alien." Tests of defendant's blood were positive for marijuana, amphetamines, and methamphetamine.
Sanchez was transported to the hospital, where he was interviewed by a police officer. Sanchez told the officer that he was in a car with a woman he met that night, and that she was seated in the driver's seat when she poured gas on him and burned up the car. He was unable to provide additional information because he appeared to lose consciousness. Sanchez was transferred to a burn center, where he later died. An autopsy revealed that he had burns over 77 percent of his body, with particularly severe burns to his torso and areas that were in contact with clothing. The cause of death was thermal burns, meaning injuries caused by fire. Blood samples taken upon his admission to the hospital were later determined to be positive for methamphetamine and ethanol alcohol. Sanchez had several past convictions for drug sales.
Captain Mabry testified regarding his investigation. He opined that defendant "intentionally set fire to the gasoline inside the vehicle with her white disposable plastic cigarette lighter." Burn damage inside the car indicated "something was definitely on fire in the driver's front seat." However, there was also some burn damage on the passenger side. Based on defendant's statement that she had been in the driver's seat, Mabry opined that the victim was in the passenger seat and "for some reason" crawled into the driver's seat to escape on that side, then stood just outside the driver's side door while he was on fire. The victim's injuries to his waistband and crotch area were consistent with the burn pattern on the car's seats, and the injuries and vehicle damage indicated the fire started in the car. Mabry did not see any indication of accidental ignition, such as smoking materials or an electrical issue.
Thomas Middleton, a licensed psychologist, testified for the defense regarding his familiarity with defendant. He testified that he evaluated defendant on three occasions: once in 2003 to assess her competency, once in 2016 to again assess her competency, and once in 2017 to assess her ability to represent herself in court. In 2003, he diagnosed her with bipolar I disorder. In 2016, he diagnosed her with unspecified psychotic disorder. By the time he evaluated her in 2017, she had been in custody for over a year and had been taking medication consistently. However, she still presented with significant symptoms and appeared to be very manic. At that time, he diagnosed her with schizoaffective disorder bipolar type, polysubstance abuse, and posttraumatic stress disorder. In addition to these assessments, Middleton encountered defendant a few months prior to trial when he was at the jail for another case. On that date, defendant was talking with someone in an adjacent booth and was extremely loud and disruptive. Middleton testified that methamphetamine can worsen the symptoms of mental illness.
DISCUSSION
I. Opinion Testimony of Captain Mabry
Captain Mabry opined that defendant "intentionally set fire to the gasoline inside the vehicle with her white disposable plastic cigarette lighter." Defendant objected that this testimony called for a legal conclusion, but the objection was overruled. Defendant now contends this testimony was admitted in error because it invaded the province of the jury to determine her guilt. We disagree.
An expert may testify regarding his or her opinion on "a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact ...." (Evid. Code, § 801, subd. (a).) "There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case." (People v. Wilson (1944) 25 Cal.2d 341, 349 (Wilson); accord, People v. Spence (2012) 212 Cal.App.4th 478, 509 (Spence).) "Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) However, "[a] witness may not express an opinion on a defendant's guilt" because such opinions " 'are of no assistance to the trier of fact.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77 (Coffman); see also People v. Prince (2007) 40 Cal.4th 1179, 1227.) " 'To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt. [Citation.]' " (Coffman, at p. 77.) Thus, admissibility of the expert testimony " 'depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved....' " (Wilson, at p. 349; accord Spence at p. 509.) "We apply an abuse of discretion standard in reviewing a trial court's decision to admit the testimony of an expert. [Citation.]" (Prince, at p. 1222.)
Here, Captain Mabry testified that he considered evidence at the scene and defendant's statements to conclude the fire was intentionally set. Mabry also opined that the fire was not of an accidental origin. He did not testify, nor does it appear he would have been qualified to testify, regarding defendant's mental status. It therefore does not appear that Mabry's testimony was, as defendant contends, necessarily offered for the purpose of establishing defendant's state of mind, but rather as an opinion on the mechanism of the fire. In this regard, his testimony provided some assistance to the trier of fact in determining defendant's involvement in the offense and was permissible on that basis. (See Coffman, supra, 34 Cal.4th at p. 77.)
Furthermore, Captain Mabry's testimony did not remove the issue of defendant's intent from the province of the jury. The jury was still required to decide whether to credit Mabry's testimony, particularly in the face of testimony from the defense expert regarding defendant's mental health issues. (See People v. Vang (2011) 52 Cal.4th 1038, 1049-1050 [expert testimony on an ultimate issue did not invade the province of the jury, in part because the jury still had to decide whether to credit the testimony].) The court instructed the jury that it was not required to accept expert opinions; that the meaning and importance of such opinions was for the jury to decide; and that the jury could disregard any opinion it found unbelievable, unreasonable, or unsupported by the evidence. Defense counsel argued that the fire may have ignited accidentally when defendant and the victim tried to light a drug pipe and that, in any event, defendant was severely psychotic and possessed only the intent to mask the smell of baby powder. It is apparent that the issue of defendant's intent remained an issue for the jury to decide. Accordingly, the court did not abuse its discretion in permitting this testimony.
Finally, even if erroneously admitted, the testimony was harmless. Defendant admitted that she set fire to the gasoline with her lighter. Captain Mabry's testimony added little to this admission and did not, as defendant contends, establish that defendant was aware of the harm her actions might cause. There is no reasonable probability the verdict would have been more favorable to defendant absent the error. (See Coffman, supra, 34 Cal.4th at p. 76 [a claim of erroneous admission of evidence is generally state law error, subject to review under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836]; People v. Partida (2005) 37 Cal.4th 428, 439 [same, and articulating the Watson test].)
II. Instruction on Involuntary Manslaughter
Defendant requested that the court instruct the jury on involuntary manslaughter as a lesser included offense on count 1, based on the predicate offenses of assault with a flammable substance and simple battery. The People argued that assault with a flammable substance did not qualify as a noninherently dangerous felony and therefore was not a proper predicate offense to support instruction on involuntary manslaughter. However, the People did not oppose instructing the jury based on a predicate offense of misdemeanor battery. Ultimately, the court ruled that it would instruct the jury on involuntary manslaughter, based on both assault with a flammable substance and simple battery as predicate offenses.
Defendant now contends the court's instruction on involuntary manslaughter failed to inform the jury that the offense used to support the involuntary manslaughter conviction must have been committed in a manner that was dangerous under the circumstances of its commission. We conclude the given instruction was correct, and fully informed the jury of the elements of the offense.
Section 192 defines involuntary manslaughter as "the unlawful killing of a human being without malice" either "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).) "Through statutory definition and judicial development, there are three types of acts that can underlie commission of involuntary manslaughter: a misdemeanor, a lawful act, or a noninherently dangerous felony. [Citation.]" (People v. Butler (2010) 187 Cal.App.4th 998, 1006 (Butler); see § 192, subd. (b); People v. Burroughs (1984) 35 Cal.3d 824, 835-836 (Burroughs), disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.)
The mens rea applicable to the predicate act underlying the offense of involuntary manslaughter has been clarified over time. In People v. Penny (1955) 44 Cal.2d 861 (Penny), our Supreme Court addressed involuntary manslaughter based on the commission of a lawful act without due caution and circumspection and equated this standard to criminal negligence. (Id. at p. 869.) Later, in Burroughs, the court concluded that involuntary manslaughter may be committed through a noninherently dangerous felony committed without due caution and circumspection, and again equated this standard with criminal negligence. (Burroughs, supra, 35 Cal.3d at p. 835, fn. 9.) Subsequently, in People v. Wells (1996) 12 Cal.4th 979, and People v. Cox (2000) 23 Cal.4th 665, our Supreme Court addressed the offenses of vehicular manslaughter and involuntary manslaughter, respectively, both of which may be committed through the commission of an unlawful act, not amounting to a felony. (Wells, at pp. 981-982; Cox, at p. 667.) In both Wells and Cox, the court concluded the unlawful act need not be inherently dangerous in the abstract, but rather dangerous under the circumstances of its commission, a standard which both cases equated with criminal negligence. (Wells, at pp. 981-982, 988; Cox, at pp. 673, 675.)
"Under this authority, criminal negligence is the governing mens rea standard for all three forms of committing the offense" of involuntary manslaughter. (Butler, supra, 187 Cal.App.4th at p. 1007.) In Penny, our Supreme Court noted that the law regarding what constitutes criminal negligence, or a lack of due caution and circumspection, was, at that time, "confused." (Penny, supra, 44 Cal.2d at p. 871.) After reviewing a long line of authorities on the subject, the court in Penny determined that criminal negligence requires conduct that is " 'aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.' " (Id. at p. 879-880.) Burroughs also adopted this standard. (Burroughs, supra, 35 Cal.3d at p. 835, fn. 9.)
Here, the jury was instructed with CALCRIM No. 580, the model jury instruction for involuntary manslaughter as a lesser included offense. This instruction informed the jury that it could only find defendant guilty of involuntary manslaughter if it found defendant committed the predicate crime (here, assault with a flammable substance and/or simple battery) "with criminal negligence." The jury was instructed on criminal negligence as follows:
"Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment.
A person acts with criminal negligence when:
One, he or she acts in a reckless way that creates a high risk of death or great bodily injury;
And, two, a reasonable person would have known that acting in that way would cause such a risk.
In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act."
Defendant does not dispute that this instruction accurately defined criminal negligence. Instead, she contends the court additionally was required to instruct the jury that the offense must be dangerous under the circumstances of its commission. However, there is no discernible difference between requiring the jury to find defendant acted in a dangerous manner, and requiring the jury to find she acted in a way that creates a high risk of death or great bodily injury, or in a way that amounted to a disregard for human life or indifference to the consequences of her actions. These variations on the definition of criminal negligence reflect "essentially the same standard." (Butler, supra, 187 Cal.App.4th at p. 1014 [holding that instruction "adequately informed the jury of the criminal negligence standard" by stating "the defendant committed involuntary manslaughter if the 'defendant committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed' "].) The trial court had no duty to further instruct the jury sua sponte, because the given instruction correctly and completely stated the elements of the offense. (See People v. Posey (2004) 32 Cal.4th 193, 218.)
There is no merit to defendant's claim of instructional error.
III. Concession by Trial Counsel
During closing argument, defense counsel described the offense of involuntary manslaughter and stated, "This is the crime that was committed here. It wasn't murder. It wasn't first- or second-degree murder. [Defendant] did not intend to kill anyone." Defendant contends trial counsel improperly conceded appellant's guilt on the charge of involuntary manslaughter, in violation of defendant's constitutional trial rights. We conclude the concession was not tantamount to a guilty plea and therefore, no formal waiver of defendant's rights was required.
"When a criminal defendant enters a guilty plea, the trial court is required to ensure that the plea is knowing and voluntary. [Citation.] As a prophylactic measure, the court must inform the defendant of three constitutional rights - the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers - and solicit a personal waiver of each. [Citations.]" (People v. Cross (2015) 61 Cal.4th 164, 170.) In the event of a guilty plea or other conduct tantamount to a plea, "the record must demonstrate that the defendant voluntarily and intelligently waived his constitutional trial rights. [Citations.]" (People v. Farwell (2018) 5 Cal.5th 295, 300 (Farwell).) "The starting point for our analysis, therefore, is whether defense counsel's concession of guilt during argument on the hit-and-run charge was tantamount to a guilty plea. If not, there was no error. If so, the concession was permissible only if based on a knowing and informed waiver by appellant of his right to trial on that count. [Citation.]" (People v. Lopez (2019) 31 Cal.App.5th 55, 63, fn. omitted (Lopez).)
The law regarding concessions by trial counsel is generally well-settled. (People v. Burns (2019) 38 Cal.App.5th 776, 782, review granted Aug. 14 2019, S257738 (Burns) [collecting cases].) Our Supreme Court has repeatedly held that trial counsel's concession of guilt on one or more charges during the guilt phase of a trial is not tantamount to a guilty plea and does not require the defendant's express waiver trial rights. (E.g., People v. Lucas (1995) 12 Cal.4th 415, 446 [defense counsel's admission during argument that the defendant "probably committed the murders" was not equivalent of a guilty plea]; People v. Cain (1995) 10 Cal.4th 1, 29-30 [defense counsel's statements during closing argument conceding that the defendant was guilty of burglary and felony murder were not tantamount to a guilty plea]; see Lopez, supra, 31 Cal.App.5th at pp. 63-64 [holding that the court was bound to follow Cain and to conclude that defense counsel's concession of guilt during argument was not equivalent of a guilty plea].) Under these authorities, counsel's partial concession of guilt during closing argument is not tantamount to a guilty plea and no waiver of defendant's trial rights was required.
Defendant nonetheless contends this case should be governed by Farwell, supra, 5 Cal.5th 295, wherein defense counsel entered into a stipulation admitting all of the elements of a particular charge, and the judge instructed the jury it must accept the stipulated facts as true. (Id. at pp. 298-299.) Our Supreme Court determined such circumstance was tantamount to a guilty plea because it "completely relieved the prosecution of its burden of proof" and made "the guilty verdict a foregone conclusion. [Citation.]" (Id. at pp. 300, 307-308, fn. omitted.) However, defendant does not cite, and we do not find, cases extending the reasoning of Farwell to a concession made during closing argument. To the contrary, courts that have considered the issue have declined to do so. (E.g., People v. Bernal (2019) 42 Cal.App.5th 1160, 1166-1167; Burns, supra, 38 Cal.App.5th at pp. 783-784; Lopez, supra, 31 Cal.App.5th at pp. 64-67.)
Defendant argues that defense counsel's concession here admitted all of the elements of involuntary manslaughter and relieved the prosecution of the burden of proof on that count, similarly to the stipulation in Farwell. We disagree. Defense counsel did not admit the elements of involuntary manslaughter "as an evidentiary matter." (Lopez, supra, 31 Cal.App.5th at p. 64 [declining to extend Farwell to a concession that did not admit all the elements of the offense].) To the contrary, despite suggesting that involuntary manslaughter was "the crime that was committed here," defense counsel also emphasized to the jury that "we don't know exactly what [went] on in that car," that defendant may have poured gasoline "in [the] area" where the victim was seated without actually dousing the victim himself, and that the fire may have started accidentally when defendant and the victim tried to light a drug pipe. Furthermore, the jury was instructed that the prosecution had to prove defendant's guilt beyond a reasonable doubt, and that statements made by counsel were not evidence. Thus, defense counsel's concession did not alter or limit the jury's role in determining defendant's guilt. (See Lopez, at p. 64.)
Defendant also urges us to conclude the concession violated his constitutional trial rights under the reasoning in McCoy v. Louisiana (2018) 584 U.S. ___, 138 S.Ct. 1500 (McCoy). In McCoy, the defendant was charged with murdering three members of his estranged wife's family. (Id. at pp. 1505-1506.) The defendant vigorously maintained his innocence. However, due to the overwhelming nature of the evidence, defense counsel planned to concede guilt in an attempt to avoid a death sentence. (Id. at p. 1506.) The defendant "vociferously" objected to this intended strategy, both prior to and during trial. (Id. at pp. 1505-1507.) Ultimately, the defendant was convicted of all three murders, and the jury returned three death verdicts. (Id. at p. 1507.) The United States Supreme Court reversed, holding that, when a client expressly asserts that the objective of his or her defense is to maintain innocence, the lawyer must abide by that objective and may not concede guilt. (Id. at p. 1509.) In other words, "counsel may not admit her client's guilt of a charged crime over the client's intransigent objection to that admission." (Id. at 1510.) The court expressly contrasted the case with Florida v. Nixon (2004) 543 U.S. 175 (Nixon), wherein the court held that a defendant's explicit consent is not required where counsel conferred with the defendant, but the defendant neither approved of nor protested the strategy. (McCoy, at p. 1509; see Nixon, at p. 192 ["When counsel informs the defendant of the strategy counsel believes to be in the defendant's best interest and the defendant is unresponsive, counsel's strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent."].)
Here, defendant acknowledges that the record does not establish that she objected to counsel's strategy of conceding she had committed the lesser offense of involuntary manslaughter. Certainly, she raised no objection at the time the statement was made, or thereafter. Moreover, although defendant repeatedly sought to remove her counsel through a series of Marsden hearings, and at one point sought to represent herself but was not permitted to do so, statements made during those proceedings suggest she may have agreed with such a concession strategy. In any event, the hearings do not reflect that defendant protested against conceding manslaughter, or otherwise instructed counsel not to pursue such a tactic. In the absence of such a record, Nixon governs, rather than McCoy. (See, McCoy, supra, 138 S.Ct. at p. 1509; Nixon, supra, 543 U.S. at p. 192; cf. People v. Eddy (2019) 33 Cal.App.5th 472, 481-482 [holding that McCoy applied where the defendant made clear he had instructed his counsel not to concede manslaughter, and counsel overrode that directive]; People v. Flores (2019) 34 Cal.App.5th 270, 273 [holding that, pursuant to McCoy, "cases in which a defendant insists on maintaining his innocence of the alleged acts - despite counsel's advice to admit the acts but deny the necessary mental state - amount to intractable disagreements about the fundamental objective of the defendant's representation" and that counsel "must not concede the actus reus of a charged crime over their client's objection"].) As stated above, under Nixon, there is no basis upon which to find a constitutional violation where the defendant neither approves of nor protests counsel's proposed concession strategy. (Nixon, at pp. 181, 192.)
People v. Marsden (1970) 2 Cal.3d 118
In sum, counsel's concession of voluntary manslaughter was not tantamount to a guilty plea and, as such, did not require defendant's knowing and voluntary waiver of her trial rights. (Lopez, supra, 31 Cal.App.5th at p. 63.) Accordingly, we find no error.
DISPOSITION
The judgment is affirmed.
POOCHIGIAN, J. WE CONCUR: LEVY, Acting P.J. SNAUFFER, J.