Opinion
F076447
02-04-2020
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND OSUNA, JR., Defendant and Appellant.
Robert H. Derham, 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, Louis M. Vasquez and Ian Whitney, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F14902514)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Robert H. Derham, 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, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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Raymond Osuna, Jr. (defendant), stands convicted, following a jury trial, of committing lewd acts, involving substantial sexual conduct, on a child 14 years of age or younger (counts 1 & 4; Pen. Code, §§ 288, subd. (a), 1203.066, subd. (a)(8).) He was sentenced to a total of 10 years in prison and ordered to pay various fees, fines, and assessments. On appeal, we hold: (1) Any error in the admission of evidence of defendant's uncharged misdeeds and incarceration was harmless, whether analyzed as trial court error or ineffective assistance of counsel; and (2) The trial court was not required to give a limiting instruction concerning such evidence on its own motion. Accordingly, we affirm.
The jury could not reach a verdict on counts 2 and 3, which alleged commission of a lewd act on a child under 14 (Pen. Code, § 288, subd. (a)) and commission of a forcible lewd act on a child under 14 (id., subd. (b)(1)), respectively. A mistrial was declared as to those counts, and they were dismissed.
FACTS
The Molestations
D., who was born in 1998, recalled living with her mother, S., and defendant when she was little. She and defendant got along well, and she trusted him.
The first time something happened that affected that trust, D. was lying in her mother's bed, watching SpongeBob cartoons. Defendant was lying next to her. S. would often rub D.'s arm or back to make D. go to sleep. On this occasion, S. was at work. Defendant started rubbing D.'s arm. D. did not think this was unusual, but then he started rubbing her stomach and inner thigh with his hand. He then moved her underwear and started rubbing the inside of her vagina with his hand. D. started crying and got off the bed. She asked why he was doing that, and he said it was normal and that it was fine and not to cry. D. went to play with her toys, and that ended the incident.
This incident formed the basis for count 1.
A couple of days later, S. again was at work. D. was taking a bath and playing with her toys in the tub when she saw defendant taking off his clothes. D. never showered with defendant and had never seen him naked before. He got in the tub with her and set her on his lap. Her back was facing his chest. She felt his penis touching her buttocks. He moved her onto her side so that her arm was touching his chest, and he kissed her cheek or her neck. He told her to look. He was looking down and holding his penis. His penis was hard. When she looked away and said she was ready to get out of the bath, he got out of the tub and left the bathroom. She played with her toys a little longer, then also got out.
This incident formed the basis for count 2.
After D. got out of the tub, dried herself off, and got dressed, defendant told her it was bedtime. He lay down with her in the bed and started rubbing her arm. He then began rubbing her leg. He moved her underwear to the side and started rubbing inside her vagina with his hand. He then turned her onto her side so her back was facing him, and he pulled her underwear all the way off. He then tried to penetrate her with his penis. She did not know if it was in her anus or her vagina, but it hurt. She started crying, told him to stop, and tried pushing him away. He said she was fine. He pulled her arms close to her body and wrapped his arms around her arms. He did not stop what he was doing, but ultimately was unsuccessful at penetrating her. He let go of her and she turned onto her back. He then put her hand on his penis, which was hard. She moved her hand away, but he put it back. She did not remember anything else happening after she moved her hand away a second time. She thought he got up and told her to go to sleep. He then left the room. That was the end of the incident, and the last time anything unusual happened.
This incident formed the basis for counts 3 and 4.
D. wanted to tell S., her mother, but she was scared to do so, because she had seen how defendant hit and choked S., and she did not want S. to go through that again. D. continued to be afraid even after she got older. She would see defendant around town and worried about what he would do if he found out she told someone.
Timeline and Disclosure
Defendant and S. married in August 2002, while defendant was incarcerated. On December 31 of that year, defendant was released and moved in with S. and D. According to S., D. and defendant had a good relationship, and defendant took care of her while S. was at work. At some point, however, D. started crying and saying she did not want to come home when she visited S.'s sister.
S. and defendant lived together for six months, then he was incarcerated again for a domestic violence incident. There were approximately three such incidents during their relationship. D. was present during two of them, including the one that was serious. The final such episode occurred in May 2003, and defendant was incarcerated the following month. S. continued to have contact with him, but an officer told her that D. could be taken away from her if she stayed with defendant, so S. decided to end the relationship. This was in September 2003.
S. had no actual contact with defendant for six or seven years afterwards, except for an incident that took place around 2007. S. and some family members went to a bar following a wedding. S., who was going to be the sober driver, saw defendant's mother when S. entered, but S. simply started talking to a friend. S.'s back was to defendant's mother and companions when someone hit S. from behind. People at the bar told S. it was defendant and his brother.
Several years later, when D. was in seventh or eighth grade, S. and defendant had a chance encounter. Defendant apologized for everything he did to S. She forgave him, and after that, their relationship was good. S. and defendant started talking, as friends, almost every day. This went on for about six months before D. became aware of it. D. asked why S. was talking to defendant and told S. she was stupid. D. saw S. and defendant talking a few times after that. When D. saw defendant, she became expressionless, like she was shutting down. When S. tried to talk to her about defendant, D. put her headphones on and ignored S.
Toward the end of seventh grade, D. started becoming rebellious and disobedient. The rebelliousness and disobedience increased after D. saw S. and defendant talking. S. learned D. might be cutting herself, and S. put her in counseling.
D. confirmed that she was depressed and anxious after seeing that defendant and S. had made up, and she cut herself with a razor or pencils for a couple of months.
When D. was 15 years old and in ninth grade, she disclosed to a close friend that her mother's ex-husband touched her inappropriately when she was little. D. was crying and had to be coaxed into saying what was wrong. The friend said D. needed to tell S., and the girls ended up walking to D.'s house. When they got there, S. was angry because it was late, and D. had ignored S.'s multiple phone calls and directives to come home. S. and D. got into an argument. D. was crying and said S. did not know what she was going through. Eventually, D. said defendant used to do "stuff" to her when she was little, and S. did not even know. S. demanded that D. tell her the truth, because S. was going to call the police. D. said to call them and insisted she was telling the truth. S. started crying and throwing up, and she called the police. After D. spoke to the police, S. had no more problems with her not coming home or sneaking out of the house.
Police Investigation and Pretext Conversation
The molestation was reported to the Coalinga Police Department on February 12, 2014, and the case was assigned to a detective. The following month, Sergeant Rouch met with D. and S. for identification of defendant through a photographic lineup. To obtain additional evidence in the case, he asked D. to meet with defendant to try to get him to admit what he did. Rouch knew through intelligence that defendant coached Little League and was at a public area on a regular basis, so the plan was for D. to be in that area and have what would appear to be a chance meeting with defendant, and then to engage him in conversation. Rouch outfitted D. with a special cell phone that he could monitor live on his computer and through which their meeting could be recorded.
The meeting between D. and defendant took place on March 12, 2014. During the conversation (the audio-video recording of which was played for the jury), D. told defendant that she was ready for a relationship, but it was hard, because she kept remembering what he used to do when she was little. Defendant responded that he did not remember too much as he had been on drugs and drinking, but if he did anything wrong to her, to forget about it and forgive him. He said he was glad D. never told her mom, because he would be in prison. When D. again said she wanted to have a relationship, he told her not to think about any "of that," and if he did anything wrong, he was sorry. He said he remembered some things he did, but he did not remember it all. He said that whatever he did, to forget about it and, if she could, to forgive him so she could move on. Defendant said he knew what he did was wrong, but he did not remember much of it. What he did remember, he was hoping D. was young enough that she did not remember, but obviously she did. Defendant said he was "fucked up in the head," because he had D.'s mother and looked at D. "kinda like my little girlfriend." He said that was wrong of him, and that she was a little girl. He said she probably looked at him like her "big boyfriend and shit like that."
DISCUSSION
I
ADMISSION OF EVIDENCE OF DEFENDANT'S MISDEEDS AND INCARCERATION
Defendant contends evidence of his incarceration, physical abuse of S., and the bar assault should not have been presented to the jury. He argues such evidence was irrelevant (Evid. Code, §§ 210, 350), more prejudicial than probative (§ 352), and constituted inadmissible character evidence (§ 1101). He asserts admission of said evidence violated state law and his right to due process and, to the extent defense counsel failed to object to the evidence, defendant's right to the effective assistance of counsel.
Further statutory references are to the Evidence Code.
Applicable Legal Principles
As defined by section 210, "[r]elevant evidence is evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' [Citation.] 'While there is no universal test of relevancy, the general rule in criminal cases might be stated as whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense. [Citation.] Evidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury.' [Citation.]" (People v. Freeman (1994) 8 Cal.4th 450, 491.) A trial court has broad discretion in determining relevance, but has no discretion to admit irrelevant evidence. (People v. Heard (2003) 31 Cal.4th 946, 973.) However, all relevant evidence is admissible unless excluded under the federal or state Constitution or by statute. (§ 351; People v. Benavides (2005) 35 Cal.4th 69, 90.)
One such exclusionary statute is section 1101. Subdivision (a) of the statute sets out the general rule that "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." In other words, "[s]ection 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant's bad character or criminal propensity." (People v. Catlin (2001) 26 Cal.4th 81, 145.) Section 1101 "recognizes, however, that there are facts other than criminal propensity to which other-crimes evidence may be relevant. [Citation.]" (People v. Catlin, supra, at pp. 145-146; see People v. Ewoldt (1994) 7 Cal.4th 380, 393, 404.) Thus, subdivision (b) of section 1101 permits "the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . opportunity . . . ) other than his or her disposition to commit such an act." "The categories listed in section 1101, subdivision (b), are examples of facts that legitimately may be proved by other-crimes evidence, but . . . the list is not exclusive. [Citations.]" (People v. Catlin, supra, 26 Cal.4th at p. 146.)
Although many cases construing section 1101 deal with the admissibility of evidence of uncharged crimes, the statute is not so limited. (See, e.g., § 1101, subd. (b); Williams v. Superior Court (1984) 36 Cal.3d 441, 449, superseded by statute on another ground as stated in Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229, fn. 19; People v. Vidaurri (1980) 103 Cal.App.3d 450, 461.)
Just because an uncharged act was committed by, or connected to, a defendant, does not make evidence of such act presumptively inadmissible under section 1101, subdivision (a). (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 406.) That provision " 'expressly prohibits the use of an uncharged offense if the only theory of relevance is that the accused has a propensity (or disposition) to commit the crime charged and that this propensity is circumstantial proof that the accused behaved accordingly on the occasion of the charged offense.' [Citation.] Section 1101[, subdivision ](b) provides that '[n]othing in this section' prohibits the admission of uncharged acts to prove a fact 'other than [a person's] disposition to commit such an act.' (Ibid., fn. omitted.) Moreover, the "ban against admitting character evidence to prove conduct . . . does not affect the admissibility of evidence regarding the credibility of a witness ([§ 1101], subd. (c)). [Citation.]" (People v. Villatoro (2012) 54 Cal.4th 1152, 1159.) Because evidence of prior misconduct may be highly inflammatory or otherwise prejudicial, however, "its admissibility should be scrutinized with great care. [Citation.]" (People v. Edelbacher (1989) 47 Cal.3d 983, 1007, abrogated on another ground in People v. Loyd (2002) 27 Cal.4th 997, 1007, fn. 12.)
"In the face of a timely objection [citation], relevant evidence may still be excluded if its probative value is substantially outweighed by the probability that its admission will require undue time consumption, will confuse or mislead the jury, or poses a substantial risk of undue prejudice." (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at pp. 406-407; see §§ 352, 353, subd. (a).) "Prejudicial," for purposes of section 352, is not the same as "damaging." (People v. Karis (1988) 46 Cal.3d 612, 638.) Instead, "[e]vidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' [citation]." (People v. Waidla (2000) 22 Cal.4th 690, 724.) Thus, "[t]he evidence barred by . . . section 352 is evidence that uniquely causes the jury to form an emotion-based bias against a party and that has very little bearing on the issues of the case. [Citation.]" (People v. Thornton (2007) 41 Cal.4th 391, 427.)
"Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence," assuming the claim has been preserved for review. (People v. Waidla, supra, 22 Cal.4th at p. 717; see People v. Thompson (2016) 1 Cal.5th 1043, 1114; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.) Where no timely objection on the ground sought to be raised on appeal was made at trial, however, the issue is forfeited. (E.g., People v. Powell (2018) 6 Cal.5th 136, 159; People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 413; People v. Richardson (2008) 43 Cal.4th 959, 1001; People v. Thornton, supra, 41 Cal.4th at p. 430, fn. 6.)
Where a claim of wrongful admission of evidence has been forfeited by lack of objection, a defendant may seek to raise the issue through a claim of ineffective assistance of counsel. The burden of proving such an allegation is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)
"To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.) "If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 367.) In other words, "in assessing a Sixth Amendment attack on trial counsel's adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice. [Citations.]" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260, original italics.) "Whether to object to arguably inadmissible evidence is a tactical decision; because trial counsel's tactical decisions are accorded substantial deference, failure to object seldom establishes counsel's incompetence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 415-416.)
Evidence of Incarceration
S.'s testimony concerning instances of defendant's incarceration is set out in the statement of facts, ante. Defendant did not object to the testimony at trial. Accordingly, as he appears to recognize, any claim the trial court erred by admitting such evidence has not been preserved for appeal.
Defendant's claim of ineffective assistance of counsel fares no better. "There is little doubt exposing a jury to a defendant's prior criminality presents the possibility of prejudicing a defendant's case and rendering suspect the outcome of the trial. [Citations.]" (People v. Harris (1994) 22 Cal.App.4th 1575, 1580-1581.) Nevertheless, it is readily apparent defense counsel pursued a reasonable tactical choice by attempting to use evidence defendant was incarcerated at certain times to demonstrate it was impossible for the acts of molestation to have occurred when D. said they did, and thereby to attack D.'s overall credibility. Because "the record does not preclude a satisfactory explanation for counsel's actions, we will not, on appeal, find that trial counsel acted deficiently. [Citations.]" (People v. Stewart (2004) 33 Cal.4th 425, 459.)
The information alleged the acts occurred between January 1, 2003, and June 8, 2003. S. testified defendant resided with her and D. for about six months after December 31, 2002. She further testified, and school records showed, D. started kindergarten in August 2003. D. testified defendant molested her while she was in kindergarten.
Evidence of Domestic Violence
Defendant did not object immediately when S. testified that a domestic violence incident ended their marriage, and that there were several such incidents. When the prosecutor asked her to describe some of the incidents and S. began to recount one that allegedly occurred while she was pregnant, however, defense counsel objected and requested a sidebar. After an unreported conference, the trial court sustained the objection and ruled that the fact of the incidents was admissible, but the details of the incidents were not. S. then testified, without further objection, that there were around three domestic violence incidents between her and defendant; one was serious; there was yelling and screaming; and D. was present during two of the incidents, including the one that was serious.
The prosecutor subsequently questioned S. about her contacts with defendant after the marriage ended. When the prosecutor asked if S. saw defendant at any other time during a specific time period, S. began to recount the incident in the bar. Defense counsel objected that the testimony was hearsay and nonresponsive. The trial court found the evidence responsive to the question of contact, but admonished the jury that the information S. received from other people could not be considered for the truth of what the other people told S., but only for consideration of S.'s recollection of the incident. Defense counsel again objected that the testimony was nonresponsive, and the trial court overruled the objection. When S. reached the part about being hit from behind and told who did it, defense counsel requested a sidebar. The trial court denied the request, reiterating that the incident itself was not hearsay and was responsive, and that what someone else may have told S. was not to be considered for the truth of what was said. Defense counsel later asked, outside the presence of the jury, the relevance of S.'s belief she had this contact with defendant. The trial court reiterated that there were questions about ongoing contact between S. and defendant, and S.'s testimony was responsive to the question asked about further contact and S.'s belief the contact was with defendant.
D. subsequently testified that she did not disclose the molestation earlier because she was scared of defendant. She explained that he was violent, and she had seen how he would hit and choke and threaten S. D. thought he would do the same thing to D. or do it again to S.
Because some discussions of objections were unreported and others involved the court and counsel speaking over each other, the record is unclear concerning the grounds on which defense counsel objected to evidence of domestic violence, and whether further objections would have been futile. To the extent the matter was preserved for appeal, we conclude the trial court did not abuse its discretion by admitting evidence domestic violence occurred. The fact of domestic violence was relevant to explain D.'s delayed disclosure of the molestation and, because extensive details of the incidents were not placed before the jury, the evidence was not substantially more prejudicial than probative. Although the evidence might have indicated a propensity for violence on defendant's part, it did not constitute improper character evidence, as it was not offered to prove his conduct on the specified occasions of the charged acts committed against D. and it was probative of D.'s credibility. (See People v. Gonzales (2012) 54 Cal.4th 1234, 1257; People v. Carter (2005) 36 Cal.4th 1215, 1257; People v. Alvarez (1996) 14 Cal.4th 155, 215-216; People v. Stern (2003) 111 Cal.App.4th 283, 296.)
Testimony one incident took place while S. was pregnant was brief and no more inflammatory than D.'s testimony concerning the acts of molestation. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405.) --------
We fail, however, to see the relevance of the details of the bar incident. Nevertheless, assuming error occurred, it was harmless. Defendant contends his due process rights were violated. "But the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.] Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional . . . test [of People v. Watson (1956) 46 Cal.2d 818, 836]: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. [Citations.]" (People v. Partida (2005) 37 Cal.4th 428, 439.)
Here, the jury was admonished that the only actual evidence defendant struck S. — what S. was told by others at the bar — was not admitted for its truth. The incident itself was relevant in terms of the contacts S. had with defendant between the end of their marriage and D.'s disclosure of the molestation, which in turn had at least some probative value with respect to the timing of and reasons for that disclosure. (See People v. Foster (2010) 50 Cal.4th 1301, 1335; Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.) Moreover, the details "pale[d] in comparison to the circumstances of the charged crimes . . . ." (People v. Case (2018) 5 Cal.5th 1, 32.) Had jurors used the evidence for an improper purpose or formed an emotion-based bias against defendant as a result of its admission, we would have expected them to convict him on all four counts. That they did not suggests they were able to consider the evidence dispassionately. (See People v. Chatman (2006) 38 Cal.4th 344, 370.)
If in fact defense counsel failed adequately to object to any of the domestic violence evidence so as to preserve his claim of erroneous admission for appeal, defendant was not deprived of the effective assistance of counsel. First, the record does not preclude a satisfactory explanation for counsel's actions. Counsel reasonably could have decided an objection to the fact of domestic violence itself would have been futile, as the existence of domestic violence was the explanation D. gave for her late disclosure of the molestation. Moreover, counsel was able to use the existence of domestic violence as an explanation for defendant's apologies in the pretext conversation. Second, for the reasons stated above, defendant has failed to establish prejudice, i.e., a reasonable probability of a more favorable outcome in the absence of the allegedly deficient performance. (See People v. Stewart, supra, 33 Cal.4th at p. 459.)
II
FAILURE TO GIVE LIMITING INSTRUCTION
Defendant contends the trial court erred by failing to instruct the jury that testimony concerning his incarceration and acts of domestic violence could not be considered as evidence of criminal disposition and a propensity to commit the charged offenses. He acknowledges no such instruction was requested, but asserts the trial court had a sua sponte duty to so instruct. We disagree.
"When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly." (§ 355, italics added.) "Thus, although a court should give a limiting instruction on request, it has no sua sponte duty to give one. [Citations.]" (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.)
In People v. Collie (1981) 30 Cal.3d 43, the California Supreme Court recognized that "[t]here may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel's inadvertence. But . . . in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct." (Id. at p. 64, fn. omitted.)
Defendant attempts to bring his case within Collie's exception, but his argument is based on his assertion the evidence of his incarceration and acts of domestic violence was not admitted for any legitimate purpose. We have rejected that contention, ante. The evidence at issue was not, contrary to defendant's view, a dominant part of the prosecution's case, and it was more than minimally relevant to a legitimate purpose. Accordingly, the trial court was under no duty, absent a request, to give a limiting instruction concerning the purposes for which the evidence could or could not be used. (See, e.g., People v. Valdez (2012) 55 Cal.4th 82, 139; People v. Mendoza (2011) 52 Cal.4th 1056, 1094; People v. Griggs (2003) 110 Cal.App.4th 1137, 1139-1140.)
DISPOSITION
The judgment is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
PEÑA, J.