Opinion
D074455
12-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JAIMI TERESA ROBERTS, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1401568) APPEAL from a judgment of the Superior Court of San Bernardino County, Eric M. Nakata, Judge. Affirmed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jaimi Teresa Roberts of (1) involuntary manslaughter (Pen. Code, § 192, subd. (b), count 1) as a lesser included offense of murder, and (2) child abuse homicide (§ 273ab, subd. (a), count 2). The court sentenced Roberts to prison for 25 years to life on count 2, and a concurrent four-year term for involuntary manslaughter, which the court stayed under section 654.
Undesignated statutory references are to the Penal Code.
On appeal, Roberts makes two instructional error arguments with respect to her conviction for child abuse homicide. First, she contends the court erred in failing to instruct on the defense of accident. If we determine the court had no sua sponte duty to so instruct, and to avoid forfeiture of the issue on appeal, Roberts contends her attorney's failure to request that instruction constituted ineffective assistance. Second, Roberts contends the court erred by failing to instruct that involuntary manslaughter is a lesser included offense of child abuse homicide. We reject both contentions and affirm.
FACTUAL BACKGROUND
A. The People's Case
In April 2014 Roberts was living with her two-year-old son, Grant, along with Roberts's boyfriend, R.H. In the evening of April 22, Roberts forcefully jabbed her elbow into Grant's abdomen. She also bit his shoulder leaving a visible bruise. Grant weighed 25 pounds. Roberts weighed about 200 pounds. Roberts later told police that Grant's injuries occurred while she was play wrestling with him.
All dates are in 2014 unless otherwise specified.
The next morning before going to work, Roberts went into Grant's room and found him with his diaper undone and feces on the floor. She told R.H. that Grant was being "a pain in the butt" and to leave him in his room for a while.
After Roberts went to work, as R.H. was preparing lunch, Grant vomited twice. R.H. telephoned Roberts and asked her to return to care for Grant. On the phone, for no apparent reason, Roberts told R.H. that while wrestling with Grant the previous night, she pretended to drop her elbow on Grant in a wrestling move—but that she hit the mattress and never struck him.
After Roberts returned home, Grant lifted up his shirt and pointed to his abdomen, indicating his stomach hurt.
The next morning, April 24, Grant's legs were cold. Roberts wrapped him in a blanket and gave him fluids; however, Grant continued vomiting.
R.H. told Roberts they should take Grant to the doctor, but Roberts refused—afraid that if a doctor saw the bite mark she made on Grant's arm, she would be suspected of child abuse.
Grant continued vomiting throughout that day. R.H. searched the Internet for information about how to raise a child's body temperature. Roberts searched the Internet for information about burst appendix, rib fracture, pancreatitis, and how to heal abdominal trauma.
Grant continued vomiting in the afternoon. He was also lethargic, "nodding out," unable to stand, and his abdomen became bloated. R.H. again told Roberts they should take him to the doctor. This time she agreed. But before they got Grant in the car, he lost consciousness and stopped breathing. R.H. called 911.
Grant died on April 24. He had bruises on the top of his head, back, lower abdomen, right cheek, shoulder, and arm, as well as scars underneath both earlobes. The bruise on the right shoulder was a bite mark caused by an adult.
Grant died from blunt force trauma to his abdomen. That force pressed the duodenum against Grant's spine, tearing the duodenum and allowing feces to spill into Grant's abdominal cavity. The feces created an infection in Grant's abdomen, which worsened over the next two days with no medical treatment. As a result of the infection, bacteria entered Grant's bloodstream, causing organ failure and death.
The duodenum is the first part of the small intestine to exit the stomach.
Grant's internal injuries were consistent with an adult dropping an elbow on his abdomen. The injuries were not consistent with a playful act, but rather a forceful collision between a solid object and Grant's abdomen.
If Grant had received professional medical care on the first day, or even the morning on the day he died, the tear in the duodenum would have likely been discovered, surgically repaired, and he would have survived.
Roberts told first responders that she had been playing with Grant doing "MMA style [mixed martial arts] wrestling"—"rough playing and wrestling moves"—and she had bit Grant "maybe a couple of times a little hard but no real injuries." She told police that the next day, when Grant was complaining of a stomach ache, she suspected that he might have ruptured his appendix or broken a rib.
On the day Grant died, Roberts told police that Grant occasionally defecated in his diaper and then would smear feces inside his room. She stated that on April 23 she found that Grant had removed his diaper and there were feces in the room. She cleaned the mess and made him breakfast. Roberts told police that when R.H. called later to report that Grant was vomiting, she thought Grant might have possibly ingested feces. However, later in the interview, Roberts said that Grant was possibly hurt when they were wrestling.
In a subsequent police interrogation on April 29, Roberts described how on April 22 she wrestled with Grant on his bed by "dropping a bomb on him." She explained that her hip and ribs would "lay into him," but her "elbow would hit the mattress." She said that Grant was "smiling" when she left his room after play wrestling that night. Initially in this interview, Roberts insisted that her elbow did not strike Grant. Later, however, she admitted, "I was landing on him." Finally, she stated, "Maybe my elbow did hit him," and ultimately confessed, "I landed on him hard." Roberts told police that Grant's eyes got "wide" and that he uttered "ugh" and then got "quiet" when she landed on him "too hard" with her elbow. "I elbowed him," she said, explaining, "I guess, I just got too into it" and elbowed Grant's abdomen "maybe twice." She concluded, "I killed my son."
Grant's father testified that when Grant was one year old, he saw Roberts punch Grant several times in the stomach with a closed fist, making a "hammer fist motion, sort of like Ultimate Fighting . . . ." Additionally, in late 2013 or early 2014, he saw an adult's bite mark about an inch wide and a half-inch deep on Grant's leg. On cross-examination, Roberts admitted that she was previously convicted for assault with force likely to produce great bodily injury.
This conviction is not related to any assault on Grant.
B. Defense Case
Roberts testified that her police confession was "[a] lie," claiming she confessed so police would "leave [her] alone." She also denied hitting Grant's abdomen with her elbow. She stated that when Grant was vomiting, she thought he had the flu. She defended her decision to not seek medical care for Grant, stating, "We had just given [Grant] medicine, so I wanted to give the opportunity for the medicine to take effect," and it was her practice not to seek medical care unless someone was "dead, dying, or bleeding." She denied hitting Grant in the abdomen when he was one year old.
DISCUSSION
I. THE COURT DID NOT ERR BY NOT INSTRUCTING ON ACCIDENT WITH
RESPECT TO CHILD ABUSE HOMICIDE
A. Roberts's Contention
Roberts testified that she thought her elbow had landed on the mattress next to Grant while they were play wrestling, and if her elbow did strike him it was unintended or, in colloquial terms, an accident. In closing argument, defense counsel argued, "Yet, in fact, it was [Roberts] whose elbow landed on her child and caused this very, very serious injury. It was an accident."
Defense counsel did not request, and the trial court did not on its own instruct with CALCRIM No. 3404 (Accident). Roberts contends the failure to so instruct is not only state law error, but also violated her federal constitutional rights.
The Attorney General concedes that the trial court erred in failing to give CALCRIM No. 3404, but contends the error is harmless.
We decline to accept the concession. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021 [although Attorney General's concession entitled to "appropriate deference," appellate court is not bound by it]; People v. Cowger (1988) 202 Cal.App.3d 1066, 1074 [not accepting Attorney General's concession of error].) As we will explain, the court correctly did not instruct on accident with respect to child abuse homicide because there was no substantial evidence to support giving that instruction.
B. Analysis
1. No sua sponte duty
"[S]ection 26 states the statutory defense [of accident]: 'All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Five—Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.'" (People v. Anderson (2011) 51 Cal.4th 989, 996 (Anderson).)
The defense of accident is not an affirmative defense. The concept of accident "'amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.'" (Anderson, supra, 51 Cal.4th at p. 998.)
Thus, for general intent crimes, CALCRIM No. 3404 informs a jury of the accident defense by providing, "[The defendant is not guilty of <insert crime[s]> if (he/she) acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of <insert crime[s]> unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.]."
Because CALCRIM No. 3404 is a pinpoint instruction as to the mens rea required for a particular crime, a trial court has no sua sponte duty to so instruct, provided the jury is properly instructed on the mental state element of the charged crime. (People v. Hussain (2014) 231 Cal.App.4th 261, 269.)
Here, the court instructed on the mens rea necessary for child abuse homicide by giving CALCRIM No. 820 (Assault Causing Death of Child). That instruction states, among other things, that the defendant must have done the act "willfully" and that when she acted "[she] was aware of facts that would lead a reasonable person to realize that [her] act by its nature would directly and probably result in great bodily injury to the child." CALCRIM No. 820 further instructs, "Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage." Roberts does not contend that CALCRIM No. 820 erroneously states the requisite mens rea for child abuse homicide. Accordingly, the court had no sua sponte obligation to instruct on accident.
Anticipating this conclusion, Roberts first contends that defense counsel did request an accident instruction on child abuse homicide. However, the record shows otherwise.
Defense counsel did not ask the court to instruct on accident with respect to child abuse homicide. Rather, counsel requested a different accident instruction, CALCRIM No. 510, which is based on section 195 and by its own terms applies only to murder and manslaughter—not to section 273ab. Indeed, in closing argument, the prosecutor noted this distinction. After quoting CALCRIM No. 510, the prosecutor argued to the jury, "By the way, this defense, excusable homicide, does not apply at all to Count 2."
CALCRIM No. 510 provides: "The defendant is not guilty of (murder/ [or] manslaughter) if (he/she) killed someone as a result of accident or misfortune. Such a killing is excused, and therefore not unlawful, if: [¶] 1. The defendant was doing a lawful act in a lawful way; [¶] 2. The defendant was acting with usual and ordinary caution; [¶] AND [¶] 3. The defendant was acting without any unlawful intent. [¶] A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter)."
A careful reading of the record is required to resolve this point because Roberts's attorney submitted a proposed special instruction bearing the footer "Exact Copy of 3404"—and CALCRIM No. 3404 is the accident instruction. However, the reference to "3404" is a clerical error: The text of the instruction is actually CALCRIM No. 3406 (Mistake of Fact), not 3404 on accident. It appears the court caught the mistake because someone interlineated a "6" over the "4." The same clerical error infected the reporter's transcript also. It contains two references to 3404—but the actual instruction being discussed is CALCRIM No. 3406. The conclusion that defense counsel asked for CALCRIM No. 3406, and not 3404, is further confirmed because the clerk's transcript contains all the instructions, both those given and those requested by counsel but not given—and does not contain CALCRIM No. 3404.
Roberts also contends that because the court instructed on accident with respect to murder and manslaughter by giving CALCRIM No. 510, the court was required to give complete and full instructions on accident, including an accident instruction (CALCRIM No. 3404) with respect to count 2, child abuse homicide under section 273ab. However, as explained post, this argument fails because the evidence did not warrant such an instruction.
We begin with section 273ab, subdivision (a), which provides in part: "Any person, having the care or custody of a child who is under eight years of age, who assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life."
The elements of section 273ab are that a person with the care or custody of a child under eight years old used force on the child that to a reasonable person would be likely to produce great bodily injury (not necessarily death), which results in the child's death even if that was not the intent. (People v. Albritton (1998) 67 Cal.App.4th 647, 655 (Albritton).) Section 273ab, subdivision (a) is not a murder statute, but rather a homicide statute, because it does not require malice, even though it carries the same penalty as first degree murder. (Id. at p. 656.)
Child abuse homicide under section 273ab is a general intent crime. "The mens rea for the crime is willfully assaulting a child under eight years of age with force that objectively is like to result in great bodily injury—that is, the assault must be intentional." (Albritton, supra, 67 Cal.App.4th at p. 658.) The mens rea for section 273ab is "analogous to section 245, subdivision (a)(1), which makes it a felony for any person 'by any means of force likely to produce great bodily injury' to commit an assault upon another." (Albritton, at p. 658.) Section 245, subdivision (a)(1) does not require a specific intent to produce great bodily injury. (Albritton, at p. 658.)
Thus, two mental states are required for a conviction of assault under section 273ab, subdivision (a). The defendant must act (1) willfully and (2) with awareness of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to the child. (People v. Williams (2001) 26 Cal.4th 779, 788.) "Willfully" means that the act was done willingly or on purpose. (People v. Lewis (2004) 120 Cal.App.4th 837, 852; CALCRIM No. 820.)
The accident defense applies if the defendant acted "'without the intent required for [the] crime . . . ." (Anderson, supra, 51 Cal.4th at p. 996.) Thus, with respect to a general intent crime such as section 273ab, an accident occurs when either (1) the act is not purposeful (e.g., a person's foot slips off the brake pedal and presses the accelerator); or (2) the person is unaware of facts that would lead a person to reasonably understand that his or her purposeful act would result in the application of force (e.g., a person opens a solid door quickly, hitting someone unseen who was about to open the door on the other side).
Here, Roberts's claim that she was entitled to an accident instruction on count 2 is based on her testimony that she was play wrestling with Grant, and the only thing that she could think of to explain his injury is that her elbow must have "accidentally" contacted his abdomen. However, the undisputed evidence is that Roberts's act of elbowing was purposeful. There is no claim that she slipped or tripped or that any other calamity occurred (e.g., a seizure) that caused her to fall on the bed or on Grant by accident. Rather, her conduct was entirely volitional, and there was no evidence suggesting any nonvolitional conduct that could support an accident defense.
When considering the evidence in the light most favorable to Roberts—that she was aiming for the mattress and not Grant's abdomen—the jury needed to evaluate whether her willful act of intending to hit the mattress was an act that a reasonable person would realize would directly, probably, and naturally lead to Grant being struck—thus providing the mens rea for assault. If the jury thought it was improbable that Roberts's elbow, when aimed elsewhere, would have struck Grant, it would have acquitted Roberts of child abuse homicide—not because her conduct was accidental, but because her conduct was not an assault because there was no significant likelihood it would result in the application of force to Grant.
If Roberts's trial testimony is believed, Grant's injury could be viewed as accidental only in the colloquial sense in that Roberts did not intend to hit him. But it would not have been accidental in the legal sense because her act of coming down with her elbow was purposeful.
Accordingly, with respect to count 2, there was no evidentiary basis for an instruction on the accident defense. Indeed, in closing argument, the prosecutor made exactly this point, arguing, "It wasn't an accidental fall. It wasn't like she slipped and her elbow accidentally fell on him. These were willful, intentional acts."
Thus, the trial court had no duty to instruct on accident with respect to count 2, either sua sponte or on request, because there was no substantial evidence to support giving such instruction. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) For the same reason, defense counsel did not render constitutionally ineffective assistance by not asking for such instruction. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
Disagreeing with this conclusion, Roberts cites People v. Gonzales (1999) 74 Cal.App.4th 382 (disapproved in part by People v. Anderson (2011) 51 Cal.4th 989, 998, fn. 3), where the court found substantial evidence warranted an instruction on accident as a defense to a corporal injury charge. However, Gonzales is materially distinguishable because, there, the defendant injured his girlfriend's head by opening a bathroom door into her without realizing she was on the other side. (Id. at p. 385.) Thus, there was substantial evidence that defendant lacked an awareness of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force. In contrast here, there is no evidence that Grant was concealed or that Roberts lacked any other data that would have prevented a reasonable person from realizing that her acts would directly and probably result in the application of force.
Roberts also posits a hypothetical in which a parent is playing catch with her child, and the ball hits the child on the head, resulting in the child's unintended death. She contends these hypothetical facts are indistinguishable from those here and would warrant an accident instruction. We disagree. In the hypothetical, and assuming the parent in Roberts's hypothetical is making age-appropriate tosses, the parent would not be guilty of child abuse homicide—but not because the assault was an "accident," but rather because there was no assault. The parent would have lacked the necessary mens rea because although the act of throwing the ball was willful, she would have acted without awareness of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to the child. Change the hypothetical to the parent throwing fastballs inches from the child's head, but not intending to actually strike the child, and Roberts's hypothetical is more consistent with her testimony about what happened in this case.
In any event, even assuming without deciding that the court should have instructed on accident, the omission of the instruction was harmless under any standard of assessing prejudicial error. The claim of accident is that the mental element of an offense is absent. Here, the jury was fully instructed concerning the elements of child abuse homicide and the prosecution's burden of proving each of those elements beyond a reasonable doubt. The court instructed the jury with CALCRIM No. 820, which instructed that to convict on count 2 the jury must find that Roberts acted "willfully" and expressly stated that "[s]omeone commits an act willfully when she does it willingly or on purpose." An accident instruction would have done no more than affirm the People's burden as already set forth in CALCRIM No. 820 to prove that Roberts acted on purpose and not by accident. We presume the jurors understood and followed the court's instructions. (People v. Gray (2005) 37 Cal.4th 168, 231.)
Moreover, even without an instruction regarding accident as to count 2, defense counsel squarely presented that defense in closing argument, arguing that there was no evidence that Roberts was "angry or otherwise; that she intentionally went into that room and intentionally jabbed her son in the stomach . . . . Yet, in fact, it was [Roberts] whose elbow landed on her child and caused this very, very serious injury. It was an accident." Later in closing argument, defense counsel again stated, "If indeed she did hit him with her elbow, it was an accident like anyone could have an accident doing something with their child . . . . Accidents happen."
Based on its verdict, the jury believed that no accident occurred. There was overwhelming evidence to support the verdict, including Roberts's confession (the jury viewed the video) in which she demonstrated with a doll how she was wresting with her two-year-old. On this record, any error in not instructing with CALCRIM No. 3404 was harmless.
At sentencing, the trial court remarked, "I have been doing this work, [Roberts], for over 30 years. I have handled innumerable cases involving child abuse. For you to sit here and tell me that you think that this was an accident is outrageous. Your demonstration to the police officer during your interview clearly showed your conscious disregard for the life of your child. And to do what you did to that child and then not take him to the hospital is outrageous."
Quoting the Ninth Circuit's opinion in United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201 and two other similar Ninth Circuit cases, Roberts contends that failing to give a defense instruction when warranted by the evidence is never harmless error. However, the California Supreme Court, whose decisions we are bound to follow, has subjected the failure to instruct on a claimed defense to a harmless error analysis. (See People v. Salas (2006) 37 Cal.4th 967, 983-984 [failure to instruct on good faith/absence of guilty knowledge].) --------
II. INVOLUNTARY MANSLAUGHTER IS NOT A LESSER INCLUDED OFFENSE OF
CHILD ABUSE HOMICIDE
Roberts contends that involuntary manslaughter is a lesser included offense of child abuse homicide. She asserts that the court's failure to so instruct is prejudicial because, if so informed, it is reasonably probable that the jury would have convicted her of only the lesser offense, involuntary manslaughter. Alternatively, Roberts contends that her involuntary manslaughter conviction on count 1 should be reversed because she cannot suffer multiple convictions based on necessarily included offenses.
Courts have applied two tests in determining whether one offense is necessarily included within the other: the elements text and the accusatory pleading test. "Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.) Here, Roberts analyzes the issue only under the elements test. Thus, we consider whether the statutory elements of child abuse homicide necessarily include all the statutory elements of involuntary manslaughter.
The elements of child abuse homicide under section 273ab, subdivision (a) are: "'(1) A person, having the care or custody of a child under the age of eight; (2) assaults this child; (3) by means of force that to a reasonable person would be likely to produce great bodily injury; (4) resulting in the child's death.'" (People v. Wyatt (2010) 48 Cal.4th 776, 780.) As noted ante, section 273ab, subdivision (a) is a general intent crime. (Albritton, supra, 67 Cal.App.4th at p. 658.)
Section 192, subdivision (b) defines involuntary manslaughter as the unlawful killing of a human being without malice when the crime happens "in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." The required mens rea for involuntary manslaughter is criminal negligence. (People v. Butler (2010) 187 Cal.App.4th 998, 1006-1007 (Butler).) A person acts with criminal negligence when "1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; AND [¶] 2. A reasonable person would have known that acting in that way would create 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 a disregard for human life or indifference to the consequences of that act." (CALCRIM No. 580 [involuntary manslaughter]; see Butler, at p. 1008.)
Roberts's assertion that involuntary manslaughter is a lesser included offense of section 273ab has been resolved against her in Orlina v. Superior Court (1999) 73 Cal.App.4th 258 (Orlina), which held that involuntary manslaughter is a lesser related offense of section 273ab—but not a lesser included offense. The court in Orlina held that involuntary manslaughter is not a lesser included offense of child abuse homicide because child abuse homicide is a general intent crime that requires "'force that to a reasonable person would be likely to produce great bodily injury,'" whereas voluntary manslaughter requires an "act which might produce death" performed with criminal negligence. Thus, not every child abuse homicide is necessarily involuntary manslaughter. (Orlina, at pp. 261-262.)
In People v. Stewart (2000) 77 Cal.App.4th 785 (Stewart) this Court considered and rejected the same argument that Roberts makes here. Holding that involuntary manslaughter is not a lesser included offense of child abuse homicide under section 273ab, we stated, "We agree with the analysis and conclusion in Orlina." (Stewart, at p. 796.)
Despite this authority, Roberts contends we should reject this court's holding in Stewart, supra, 77 Cal.App.4th 785 because a more recent case has held that a killing without malice occurring during an assault is involuntary manslaughter. (See People v. Brothers (2015) 236 Cal.App.4th 24, 33-34.) However, the court in Brothers had no occasion to address whether involuntary manslaughter is a lesser included offense of section 273ab. (See People v. Mantanez (2002) 98 Cal.App.4th 354, 365 ["[c]ases are not authority for propositions not properly before them"].) The issue here is whether the statutory elements of child abuse homicide necessarily include all the statutory elements of involuntary manslaughter. Orlina and Stewart hold they do not. We discern no compelling reason in this case to revisit those holdings. (See People v. Bolden (1990) 217 Cal.App.3d 1591, 1598.)
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: HALLER, J. DATO, J.