Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF130683, Robert George Spitzer, Judge.
Peter Dodd, 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 Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
In the early morning hours of September 30, 2005, defendant Elias Zar Estrada Lopez went to the warehouse of his employer, Board Dudes, located in Corona, and was viewed on video surveillance loading 280 wooden pallets onto a flatbed truck and driving away. The pallets, estimated to be worth $4 per pallet if new, were not returned. Defendant was convicted of one count of grand theft by embezzlement. He now contends:
1. The trial court’s instruction of the jury on the intent necessary for embezzlement was misleading and erroneous.
2. The trial court erred by denying his Romero motion to strike his prior serious or violent felony conviction.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
3. The trial court erred by making an inadequate inquiry into defendant’s counsel’s possible conflict of interest.
We conclude that there was no prejudicial error and affirm the judgment.
I
PROCEDURAL BACKGROUND
Defendant was convicted of embezzlement, with a special finding that it constituted grand theft. (Pen. Code, § 503.) In a bifurcated proceeding, after waiving his right to a jury trial, defendant admitted that he had previously been convicted of one serious or violent felony conviction. (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1).) The trial court sentenced defendant to state prison for a total term of two years eight months.
All further statutory references are to the Penal Code unless otherwise indicated.
II
FACTUAL BACKGROUND
A. Prosecution
In September 2005, Michael Cerillo and Ben Hoch co-owned Board Dudes, Inc., a company located in Corona that manufactures and distributes dry erase boards and bulletin boards. The facility in Corona consisted of both office space and an attached warehouse and distribution center.
In September 2005, defendant was the warehouse manager. As warehouse manager, defendant was in charge of shipping and receiving. Defendant also had the responsibility for ordering wooden pallets, which were used to hold product stored in the warehouse. Defendant, Hoch, Cerillo, and another employee, Jose de Jesus Galindo, who also worked in the warehouse, were the only employees who had keys to a back gate that led to the warehouse. Video cameras were located throughout the warehouse and office.
If a pallet became damaged or broken, it would be stored outside and was no longer usable. Cerillo estimated that at any one time, there would be five to 10 broken pallets behind the warehouse. At some time, defendant was given permission to sell the broken pallets for $1 or $2 per pallet. There was no contract with the company that was buying the pallets. The money was to be given to Board Dudes, but it was agreed it would be used to throw pizza parties for the workers in the warehouse. Several pizza parties were held in 2005. Defendant did not have permission to keep the money.
In 2005, Galindo was in charge of opening and closing the warehouse. In September 2005, he started to notice that there were new pallets missing that had been in the warehouse the night before. Also, he noticed that the forklift had been moved from the location he put it when he closed the warehouse. He noticed pallets missing at least five times; there were hundreds of new pallets missing. He also noticed that the chains on the backyard fence had been moved.
In mid-September 2005, Galindo decided to tell Hoch. G13 They met at a coffee shop by Hoch’s home because Galindo did not want to talk at the office. Galindo was very upset. Based on their conversation, Hoch believed that defendant might have been stealing pallets from the warehouse.
Hoch enlisted another employee, Matthew Staples, to count a new shipment of pallets received in the warehouse one night at the end of business hours and then count them in the morning. The night Staples counted the shipment (the Wednesday or Thursday before October 1, 2005) there were 120 pallets in one location. The following morning there were only 25. Staples was the last one to leave that evening and one of the first to arrive the following morning.
Hoch and Cerillo reviewed video surveillance from September 24 and 30, 2005. The jury was shown a videotape of the surveillance.
Neither party has requested that the videotape be transferred to this court for review. Since the contents of the videotape are not relevant to a determination of the issues on appeal, we have not reviewed the tape.
On September 24, 2005, at 5:21 a.m., video surveillance from the back of the warehouse showed defendant and another employee, Jairo Huerta. Huerta covered his face for part of the time on the videotape. They drove a forklift into the back of the warehouse and then left at approximately 6:30 a.m.
On September 30, 2005, at 5:14 a.m., the videotape again showed Huerta driving the forklift into the warehouse. Defendant also appeared on the videotape. There were empty pallets on the forklift that were being taken out of the warehouse to a location not seen on the videotape.
The videotape then showed a truck pulling back toward the warehouse; it was empty. When the truck left the property at 6:25 a.m., it was filled with empty pallets. Hoch estimated that there were 280 pallets on the truck. He believed that the pallets on the truck were not broken or damaged by the way they were stacked on the truck. Cerillo also testified that the pallets on the truck were new and undamaged. Hoch estimated that the new pallets would sell for about $4 per pallet. Hoch determined that 280 of these pallets would amount to $1,120.
Hoch called the police. Corona Police Officer David Durant responded to Board Dudes on October 1, 2005. Officer Durant encountered defendant at the location. He interviewed defendant and recorded the interview. The taped conversation was played for the jury.
The transcript of the taped interviewed has been included in the record.
Officer Durant advised defendant that he was there because of some missing pallets, to which defendant responded, “Oh, really?” Defendant initially denied that he was aware that someone was taking pallets. He told Officer Durant that the broken ones were sold by Caesar (who was Huerta). Defendant was not aware of anyone other than himself who had access to the warehouse during early or late hours. He then indicated that he had been ordering more pallets in 2005 and claimed he asked the persons in the warehouse about it.
As for September 30, 2005, defendant admitted he was present but claimed he was there cleaning up the back of the warehouse. He claimed that the pallets shown in the videotape on the truck were all broken pallets. He estimated there were about 150 broken pallets. Defendant denied that he loaded the pallets; he believed that they were loaded by Huerta. Defendant claimed that the other warehouse workers sold the broken pallets. Defendant just opened up the warehouse, and Huerta handled the loading and determining which of the pallets were broken.
Jane Rachal was the controller for Board Dudes. She was essentially in charge of incoming and outgoing money. Three or four times per year Rachal received money for the sale of broken pallets, but it never amounted to more than $50 to $80. Rachal was aware of pizza parties held in the warehouse supposedly funded by money received from selling broken pallets, but she was not sure if all of the money went through her.
Rachal presented documentation showing that in 2004 Board Dudes purchased 10,062 pallets; in 2005 they purchased 21,719 pallets; and in 2006, 17,619 pallets were ordered. These numbers were compiled by reviewing all of the invoices for the year. Rachal stated that their business did increase by 50 percent between 2004 and 2005 but that it was mostly through sales that did not come through the warehouse. Rachal indicated that there was no business reason for the increase in the number of pallets needed in 2005. By comparing the number of pallets ordered and the shipping logs, 10,000 pallets were missing. Based on this comparison, an insurance claim of $53,000 was made for the missing pallets. The number of pallets shipped was recorded by defendant; Rachal had to rely completely upon these records in computing her numbers. There were mistakes in the summary of missing pallets.
B. Defense
Huerta was employed at Board Dudes in September 2005 and was still so employed at the time of trial. He indicated that during the receiving and shipping process, pallets could be damaged. Damaged pallets were stored behind the warehouse.
Huerta claimed the truck seen leaving the facility on September 30, 2005, was loaded with broken pallets. He loaded the pallets himself. Defendant was present when the broken pallets were loaded on the truck.
Huerta claimed the broken pallets were sold for about 25 cents each. Defendant would gather all of the money from the sale of broken pallets and buy food for the workers. Huerta had never observed defendant selling new pallets.
Huerta was at the warehouse on the mornings of September 24 and 30, 2005, conducting inventory. Huerta admitted he was moving pallets but claimed it was to facilitate his inventorying and to clear space. Huerta claimed he was probably just rubbing his eyes when he came by the camera, rather than trying to hide his face. Huerta claimed that he did not clock in for the inventory work because he had to be approved to work overtime.
III
INSTRUCTIONAL ERROR ON INTENT FOR EMBEZZLEMENT
Defendant claims that Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 1806 misled the jury as to the requisite intent for theft by embezzlement.
Defendant was charged with violating section 503, which provides, “Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted.” The jury was instructed with CALCRIM No. 1806, as to the crime of embezzlement, and that the intent required for such crime was as follows: “[W]hen the defendant converted the property, he intended to deprive the owner of it permanently or to remove it from the owner’s possession for some extended period of time that the owner would be deprived of a major portion or the value or enjoyment of the property.”
The language used in this instruction is derived directly from the Supreme Court’s holding in People v. Avery (2002) 27 Cal.4th 49 (Avery). In Avery, the defendant was convicted of arson, and the prosecution sought to prove that he had suffered a prior serious conviction of robbery based on a conviction for theft in Texas. In Texas, the definition of theft included, in addition to permanently depriving property from an owner, that if the person removed the property from the owner’s possession for so extended a period of time as to deprive the owner of a major portion of its value and enjoyment, it constituted theft. (Id. at p. 52.)
The Supreme Court noted that “[t]he time has now come to decide the question” of whether such alternative definition was sufficient to constitute robbery in California with the proviso that “due to the way in which it arises, we do so in the abstract without a concrete factual context.” (Avery, supra, 27 Cal.4th at p. 55.) The court then cited examples of situations where this alternative definition may apply, such as when the taker intends to sell the property back to the owner or get a refund, when the property is perishable, such as cut flowers, and when the taker intends to use the property temporarily and then abandon it. (Id. at pp. 55-56.) The Supreme Court concluded that the definition of theft in California includes this alternative definition, which it specifically stated was “‘the intent to deprive an owner of the main value of his property is equivalent to the intent to permanently deprive an owner of property.’” (Id. at p. 57, quoting People v. Zangari (2001) 89 Cal.App.4th 1436, 1443.)
It is clear that the language in CALCRIM No. 1806 is proper given the decision in Avery. Defendant, however, contends it was improper to include this definition in this case, because the facts of this case do not match any of the examples given by the Avery court.
Initially, we reject defendant’s premise that this alternative definition can only be used if it matches the examples given by the Avery court. As noted, the case had come to the Supreme Court in the abstract, and the court in no way implied or held that the examples supporting the definition were the only possible situations in which the instruction should have been given.
Further, since the instruction is clearly in the alternative, if defendant felt that this alternative theory was not applicable to the instant case, he should have requested a modification of the instruction in the trial court. By failing to request such modification, he has waived the claim on appeal. (People v. Daya (1994) 29 Cal.App.4th 697, 714 [“defendant is not entitled to remain mute at trial and scream foul on appeal for the court’s failure to expand, modify, and refine standardized jury instructions”].)
We also disagree that the instruction was misleading. It used the same language used by the Supreme Court to describe the intent element of theft. We fail to see how using the language of Avery, which defines the intent element in the abstract, could be misleading.
Defendant contends that CALCRIM No. 1806 as given caused prejudicial error because it undermined his defense. Specifically, he claims that the jury could have convicted him of embezzlement if it concluded that the pallets on the truck were unusable and that he intended to use the money obtained from selling the unusable pallets for pizza parties for the workers, but found he was nonetheless guilty if the jurors believed holding such money deprived the owners of Board Dudes any interest that could be made on the money.
We conclude that even if the instruction was somehow unclear or erroneous, any such error would be harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
The theory of a temporary taking of the property and depriving the owners of interest on the money was never argued in the lower court by the prosecution. We find it unreasonable to assume that the jury would have concocted such a theory in convicting defendant. It is true that defendant’s defense in this case was that he sold unusable pallets and was going to use the money to throw pizza parties for the employees, a use authorized by the owners of Board Dudes. The prosecution argued that defendant stole new pallets and intended to keep the money. Further, even if the pallets were broken, it still amounted to grand theft. Either way, the prosecution relied upon the fact that defendant never intended to give back any money he received from selling the pallets to the owners of Board Dudes. Hence, the jurors were required to determine whether the pallets seen in the videotape being loaded on a truck and leaving the property were in fact new or unusable and whether defendant ever gave money back to the owners or used it for pizza parties. Accordingly, defendant’s claim that the instruction was misleading was clearly harmless, as the jury was only deciding whether he permanently deprived the owners of the money.
Based on the foregoing, we conclude not only that CALCRIM No. 1806 was properly given to the jury, but also that any conceivable error was harmless.
IV
REFUSAL TO STRIKE PRIOR CONVICTION
Defendant contends that the trial court erred by failing to strike his prior conviction.
A. Factual Background
Defendant filed a written motion pursuant to Romero requesting that the trial court strike his prior conviction on the grounds that the prior conviction was 14 years old, and he was less culpable than his codefendants in the prior crime, and based on the nature and circumstances of the instant offense and defendant himself. The People filed opposition that, although defendant had remained crime free between the time of the robbery offense and the instant offense, the nature of the prior crime and the fact that he was convicted of two theft offenses showed he was within the three strikes sentencing scheme.
At the hearing on the matter, defendant argued that the prior crime was committed when he was only 18 years old, and he was housed in the California Youth Authority. Further, defendant had been crime free until the instant offense. Defendant had been employed since his release on parole. He was married, had two children, and was involved in the church and his community. The People argued in opposition that the prior crime was serious.
The trial court noted it had read the probation report for the prior crime. It stated it was aware that its responsibility was to review the various factors, including the nature of the offense and the passage of time, in determining whether defendant fell outside the spirit of the three strikes law. It then noted that defendant had committed the armed robbery when he was 18 years old, that he may not have been as culpable as the two coperpetrators, and that he was remorseful for his conduct. Further, the trial court recognized that defendant had successfully completed his parole and had remained crime free for a number of years.
The probation report for the prior crime has been included in the record in the Confidential Clerk’s Transcript.
The trial court nonetheless refused to strike the prior conviction, stating, “It is, however, unexplained why after being exposed to the punitive nature of the criminal justice system, even after years, he forgot the lessons that were taught by that system and chose to steal from his employer and involve others in this theft, which was a breach of trust. A breach of the trust of not only his employers, but the trust that the community had placed on him. [¶] A dishonesty that exhibited itself in 1992 and 1993 is the same kind of dishonest behavior that exhibited itself in 2005 at the Board Dudes warehouse, and the Court cannot find that this takes the defendant out of the spirit of the three strikes law, and the motion to strike the priors at this point in time would be denied.”
Defendant’s low-term sentence of one year four months (§ 489) was doubled due to the strike.
B. Analysis
In Romero, the Supreme Court held that it is within a trial court’s discretion to dismiss one or more strike priors in the interest of justice under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The key to this analysis is “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377, quoting People v. Williams (1998) 17 Cal.4th 148, 161.)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony, supra, 33 Cal.4th at p. 375.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) The circumstances must be “extraordinary” for a career criminal to be deemed outside the scheme of the three strikes law. (Id. at p. 378.)
Defendant’s circumstances are not extraordinary. It is true that defendant had only one prior felony conviction for robbery (§ 211), which he suffered in December 1992 and for which he was sentenced to three years in prison. He was housed at the California Youth Authority. He was released on parole in 1994 and discharged from parole in 1997.
The circumstances of the prior offense are certainly troubling. This was not a simple robbery. Defendant entered a store with two other men, one of whom was armed. The store owner was held at gunpoint, and then she and her nine-year-old daughter were tied up and locked in a back room. Defendant and two other men stole a significant amount of jewelry from the store. Defendant also admitted that, at the time, he was stealing cars for the two men. Although defendant made self-serving statements that he was somehow coerced into committing this crime, that does not diminish its seriousness.
Moreover, although defendant downplays the seriousness of the instant offense, the owners of Board Dudes certainly entrusted defendant with hundreds of dollars of inventory. Defendant breached that trust by stealing from them. The nature of the crime was certainly sophisticated and planned. Further, the trial court properly noted that defendant exhibited the same type of dishonesty in 1992 and 2005.
We believe both that the trial court was aware of its discretion to strike the prior conviction and that it did not abuse that discretion by finding that defendant did not fall outside the spirit of the three strikes sentencing scheme. Defendant admits that the trial court reviewed all of the necessary factors but claims it erred when it decided he did not fall outside the spirit of the three strikes law. Defendant has provided nothing to this court that would show that such a determination by the trial court was so “irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at p. 377.)
Since we cannot say that defendant’s sentence falls outside the spirit of the three strikes law, we find the trial court did not abuse its discretion by denying his Romero motion.
V
TRIAL COUNSEL’S CONFLICT OF INTEREST
Defendant contends that the trial court should have inquired into a potential conflict of interest between defendant and his trial counsel due to trial counsel being a potential defense witness.
A. Background
Prior to trial, defendant moved to have Board Dudes turn over the records used to support summaries made by Rachal that showed the number of pallets ordered in 2004, 2005, and 2006 by Board Dudes and the number of pallets that had been shipped. These documents would be used to prove that a larger number of pallets were ordered in 2005, and they could not all be accounted for. Defendant wanted documents from Board Dudes that supported these summaries. Defendant was granted the right to review the supporting documents.
Just prior to the trial beginning, defendant’s counsel advised the trial court (now a new trial judge) that he personally had reviewed documents at Board Dudes that were supposed to support the summaries made by Rachal regarding the number of pallets ordered and shipped in 2005. Defense counsel explained, “We were able to separate only a few of the boxes, and I took samples of those boxes . . . .” Counsel advised the trial court that based on this review he determined that about 50 percent of the records did not match the spreadsheets. Defendant argued that the evidence that there were 10,000 pallets stolen from Board Dudes in 2005 should be excluded because he was only charged with theft on September 30, 2005, and the spreadsheets that reflected the amount were inaccurate.
The prosecution responded that it was introducing this evidence under Evidence Code section 1101, subdivision (b), to show defendant’s intent. The prosecution argued that there was evidence defendant was systematically ordering extra pallets and selling them on the side; that the documents sought to show how many pallets were ordered in 2004, 2005, and 2006; and that the documents tended to show that the business was ordering many more pallets than were needed, and pallets were missing. The trial court allowed the evidence. During direct examination, Rachal testified regarding the summaries of how many pallets were purchased in 2004, 2005, and 2006.
During cross-examination, defendant’s counsel inquired of Rachal if she recalled that he had personally come to Board Dudes and looked through boxes of invoices. Rachal responded that she had witnessed defendant’s counsel go through the boxes. Rachal admitted she did not review the accuracy of the records against the actual invoices. Rachal also testified that the shipping logs that she relied on in making her summaries were created by defendant. Rachal testified that the records were “sloppy.”
B. Analysis
“A criminal defendant’s right to effective assistance of counsel, guaranteed by both the state and federal Constitutions, includes the right to representation free from conflicts of interest. [Citations.]” (People v. Sanchez (1995) 12 Cal.4th 1, 45; see also Wood v. Georgia (1981) 450 U.S. 261, 271 [101 S.Ct. 1097, 67 L.Ed.2d 220].)
“Conflicts of interest may arise in various factual settings. Broadly, they ‘embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.’” (People v. Jones (1991) 53 Cal.3d 1115, 1134, quoting People v. Bonin (1989) 47 Cal.3d 808, 835.) “When a trial court knows or should know that defense counsel has a possible conflict of interest with his client, it must inquire into the matter [citations] and act in response to what its inquiry discovers [citation].” (Jones,at pp. 1136-1137.)
“To establish a violation of the right to unconflicted counsel under the federal Constitution, ‘a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.’ [Citation.] To establish a violation of the same right under our state Constitution, a defendant need only show that the record supports an ‘informed speculation’ that counsel’s representation of the defendant was adversely affected by the claimed conflict of interest. [Citations.]” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1009.) “A trial court’s failure to inquire into the conflict or to adequately respond to its inquiry amounts to reversible error if the defendant can show ‘that an actual conflict of interest existed and that that conflict adversely affected counsel’s performance.’ [Citations.]” (People v. Sanchez, supra, 12 Cal.4th at p. 47; People v. Frye (1998) 18 Cal.4th 894, 999.)
Rule 5-210(C) of the State Bar Rules of Professional Conduct Rule provides that an attorney shall not act as an advocate before a jury which will hear testimony from the attorney unless the client gives informed and written consent.
“An attorney who attempts to be both advocate and witness impairs his credibility as witness and diminishes his effectiveness as advocate.” (Comden v. Superior Court (1978) 20 Cal.3d 906, 912, superseded by rule on another ground as stated in Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578-579.)
We do not interpret defendant’s argument to be that defendant’s counsel should have withdrawn as counsel. (See People v. Dunkle (2005) 36 Cal.4th 861, 915-916.)
Defendant has failed to show that the trial court should have been aware that a potential conflict of interest existed. The definition of conflict of interest is that counsel’s “loyalty” and “efforts on behalf of” a client are threatened by either counsel’s representation of another client or third person or by his own interests. (People v. Jones, supra, 53 Cal.3d at p. 1134.) Here, there was no showing that the information possessed by trial counsel somehow affected his loyalty to defendant or that counsel had some sort of interest in the information. This is evidenced by the fact that counsel cross-examined Rachal regarding the information. There simply was no showing that there was an actual conflict of interest in this case.
Further, defendant assumes that his counsel was the only possible person who could testify regarding the discrepancies in the records kept by Rachal. However, it is not clear from the record whether defendant’s counsel was accompanied by another person when he went to review the records. When defendant’s counsel first sought to review the records, he indicated that he had someone in mind to review the records. At the hearing on the matter, defendant’s counsel stated that “we” went through the boxes. This certainly does not conclusively prove that someone else was with defendant’s counsel, but it certainly raises a question of whether someone else could have testified. Defendant assumes that his counsel would go to the warehouse alone and potentially make himself the only possible witness in this case. That certainly is not supported by the record in this case.
Moreover, defendant’s counsel could have introduced documents to support the claim that the summaries were erroneous, or possibly another person who accompanied him to Board Dudes. We cannot assume on this record that defendant’s counsel was the only witness who could testify to rebut Rachal’s testimony. It is defendant’s duty (since he failed to object at trial) to show an actual conflict of interest or at least informed speculation that a conflict of interest exists. We simply cannot conclude that such conflict existed.
Even if we were to conclude that there was a conflict of interest, defendant has failed to show it adversely affected his counsel’s performance. (People v. Sanchez, supra, 12 Cal.4th at p. 47; People v. Frye, supra, 18 Cal.4th at p. 999.) Defendant’s counsel effectively cross-examined Rachal as to the inaccuracies of the records. We reject defendant’s claim that Rachal’s testimony was left “unimpeached.” Defendant has provided nothing to this court to show what his counsel would have provided in addition to the information already before the jury.
Moreover, the evidence that was to be introduced regarding the number of pallets missing in 2005 pertained to a collateral matter, i.e., Evidence Code section 1101, subdivision (b) evidence, and did not go to the ultimate decision that had to be made by the jury: that defendant stole the pallets on the truck seen in the videotaped surveillance on September 30, 2005. Defendant has not shown how such conflict of interest, i.e., that he may be a witness regarding this collateral matter, affected his counsel’s performance on the real issue before the jury. We believe that defendant’s counsel was more than adequate in defending defendant.
Defendant has failed to show that an actual conflict of interest adversely affected his lawyer’s performance, or even an “‘informed speculation’” that counsel’s representation of him was adversely affected by the claimed conflict of interest. (People v. Kirkpatrick, supra, 7 Cal.4th at p. 1009.) As such, we reject defendant’s claim.
VI
DISPOSITION
We affirm the judgment in its entirety.
We concur: HOLLENHORST, Acting P.J. KING, J.