Opinion
A148314
06-30-2017
THE PEOPLE, Plaintiff and Respondent, v. DAMIR SHALAKO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 216095)
INTRODUCTION
A jury convicted defendant Damir Shalako of rape and other crimes against a friend of his grandmother's. He challenges the trial court's modification of the standard CALCRIM instructions defining penetration. Finding no error or prejudice, we affirm.
STATEMENT OF THE CASE
An information filed in San Francisco County Superior Court charged Shalako with two counts of forcible rape, forcible sexual penetration by a foreign object, assault with intent to commit rape during the commission of a first degree burglary, and first degree residential robbery. (Pen. Code, §§ 261, subd. (a)(2), 289, subd. (a)(1)(A), 220, subd. (b), 211.) The information also included allegations that the rape and sexual penetration counts were committed during the commission of a burglary and with the intent to commit those crimes. (§ 667.61, subd. (d)(4).) The information further alleged Shalako had served a prior prison term. (§ 667.5, subd. (b).) Shalako pleaded not guilty and denied the allegations.
Unless otherwise indicated, all further statutory references are to the Penal Code.
A jury convicted Shalako on all counts and found the one strike allegation true as to the forcible rapes and not true as to the forcible sexual penetration. The court subsequently found true the prior prison term allegation. The court sentenced Shalako to a total prison term of 30 years to life. Shalako timely appeals.
STATEMENT OF FACTS
In September 2010, when Millie L. was in her early 50's, she lived in an apartment on Dakota Street in San Francisco. Maria M., Shalako's grandmother, was Millie's friend and next door neighbor. On September 28, 2010, at 10:00 or 11:00 a.m., Millie noticed Maria's apartment door was open. Maria's grandson, Shalako, was there. He was 25 years old and had been released from jail recently; he was staying with Maria for a few days. Millie asked him if Maria was at home and if she could come in. Shalako let her in. Millie spoke with Maria for a few minutes and then went to her own apartment.
A short time later, Millie heard knocking on her door. There were 12 steps down to her front door. She walked down the stairs to see who was there through the peephole in the door. It was Shalako. He said the toilet at his grandmother's place was not working and asked if he could use her bathroom. Millie let him in, but told him to "hurry up." She sensed there was "something wrong." Before using the bathroom, Shalako stood in the hallway and looked around the rooms in the apartment. After Shalako used the bathroom, he asked Millie if she had a husband or boyfriend. Millie said, "No." He asked if Millie had a son. She said, "Yes."
Shalako went into Millie's bedroom and told her to "[c]ome here." She hesitated. Shalako had grabbed Millie's purse and Millie wanted it back. The purse contained two rings, her cell phone, a wallet with credit cards, her driver's license, and $1,000 to $5,000 in cash. Shalako told Millie to sit down and he would give the purse back, so Millie went into the bedroom. She sat down on the bed next to Shalako, but when she reached for her purse Shalako punched her in the face. He grabbed her neck and pushed her down on the bed. Millie could not breathe. When she tried to remove Shalako's hand from her neck, he hit her in the face again. Millie briefly lost consciousness.
He took off her pants and underpants, removed his underwear, and tried to rape her. Millie protested, "No, no, I'm too old." Shalako responded, "So what?" Millie "squeezed [her] legs together really tightly" but Shalako was "too strong" and he forced her legs open with his hand. He tried to turn her over twice but she fought him.
Millie testified Shalako raped her. She said she felt his penis inside her vagina and it hurt. Millie also testified that during the first act, Shalako was pushing his penis against her, trying to penetrate her, but it was not working. He could not perform. But because she was complaining of pain in her vagina, Shalako put his penis by her mouth; she pushed him away. Shalako held her tightly by the wrists and pressed her down on the bed "[v]ery forcefully" both before and after penetration.
At some point, Millie said, "I don't feel anything." Millie's vaginal area was "very dry" and Shalako removed his penis. He put saliva on his hand and applied his saliva to the inside of her vagina. He then reinserted his penis, but he "could not perform." After many, many attempts causing her great pain, she said, "Let me help you." It was not that she wanted him to get hard: "He already penetrated. I just wanted to get it over with fast." Shalako, however, did not want her to use her hand on his penis. "He wanted to penetrate." She told him to "[h]urry up, hurry up," because he was causing her a great deal of pain in her vaginal area. Millie had already told him she was "in great pain" and did not want to go on, but Shalako "did not care . . . about [her] pain or anything." He did not seem frustrated or angry by his inability to perform. He "reacted in a flippant manner." He treated her "as though [she] was not a human being."
Millie did not know how long he was inside her the second time. During the incident, Millie said "no, no, no," and tried to yell, but she could not, because "he was choking [her] in a very forceful manner." Shalako said, "Don't call the police, don't yell. I will return the money to you." After that he said, "I will kill you." When Shalako finished he put on his pants and took Millie's purse. He told her: "Do not yell. No noise or I'll kill you."
Millie followed him down the stairs, trying to get her purse back, but Shalako punched her in the face near her right eye "[v]ery forcefully" and she started to bleed. He punched her with such force she fell and slipped, injuring her elbows. At this point, Millie was yelling for Maria.
Maria heard noises coming from Millie's stairs and opened her door. Millie was calling her name and screaming for help. She knocked on a neighbor's door and told them to call the police. Maria knocked on Millie's door and tried to push it open. She kept banging on the door. When the door finally opened, her grandson was standing there. She was not expecting to see him and she "just died." He looked angry and he was holding Millie's purse. She tried to take it from him, but Shalako pushed her away and ran. San Francisco police officer Cullen Cahill, who happened to be nearby, saw Shalako running from an alcove "at a full sprint." Then an Asian lady wearing no pants and holding her bloody face emerged from the same alcove. Cahill gave chase, but he was not able to catch Shalako.
Millie, meanwhile, waited by the door with Maria, bloody and naked except for a blouse. Maria asked her if Shalako had touched her and she said, "[Y]eah, yeah." Maria called 911. She told the 911 operator her grandson had raped her neighbor; she described him and said he was on drugs. A recording of the 911 call was played for the jury. Millie was taken by ambulance to the hospital.
Sergeant Lyn O'Connor processed the crime scene at Millie's apartment. She noted blood on the landing, as well as blood on the stairs leading up to the living area. There was one blood swipe on a wall adjacent to the staircase on the second floor, and another one on the banister, and blood droplets on the bedroom floor at the foot of the bed.
Nurse practitioner Ruth Armstrong met Millie at the hospital emergency room and noted that Millie had "obvious physical trauma to her face and mouth" and was in shock. She interviewed Millie, asking very specific questions about the sexual assault and recording Millie's answers in a report. Millie answered "yes" to the question whether there was penetration of the vagina by a penis and "no" to the question whether there was penetration with a finger. Asked if lubricants were used, Millie said, "He used his saliva on my vagina to wet him." She reported the penis was "flaccid."
On physical examination, Armstrong noted that Millie had a laceration over her right eye, blood on her mouth, cuts inside her lips, and her teeth on the right side were loosened; one was cracked. Millie had swelling to her cheeks and nose and red marks around her neck. Millie's neck was swollen, discolored and displayed petechiae. The injuries to Millie's neck were consistent with being strangled. Millie reported that her assailant grabbed her by the wrists while she was resisting, and the injuries on Millie's wrists were consistent with that report. Millie had injuries to both elbows and bruising on her right inner thigh, which was consistent with someone pushing her legs open. Armstrong photographed Millie's injuries.
Armstrong opened the labia of Millie's vagina and noted tenderness and very bright redness of the perihymenal tissue, which is right around the opening of the vagina, and of the fossa navicularis, near the bottom of the vaginal opening. Millie said it was very sore there.
The fossa navicularis is "not like inside the vagina, but it's in the vestibule that's inside her labia." On a woman's genitals, the labia and pubic hair are on the outside. You have to open the labia to get to the vestibule. It is possible to penetrate into the vestibule without penetrating beyond that point. "[T]he tenderness and the redness . . . were consistent with what [Millie] said happened to her."
In response to juror questions, Armstrong was asked to name the different areas of the vagina. She testified: "The labia majora on the very outside; the labia minora, which are the lips inside; and then there's the vestibule area that has the hymen, the navicularis, and the clitoris is on the top, and also the urethra opening where the woman urinates, that's there too, and the vagina is inside, where you don't see it." During the interview process, she does not "go into that" with the patient. "We just say, 'Was there a penis in your vagina?' "
The nurse also swabbed the inside of Millie's vagina. The long swabs that are used to make a smear for testing "go directly into the vagina. They don't go on the outside, they go directly into the opening." She was very careful to insert the swab without touching the area "outside," i.e., the labia or area external to the vagina. The swabs were collected by police and booked into evidence.
Millie told Armstrong she was penetrated with a penis twice. "Later, in another statement she made, that it was flaccid. She didn't say she was penetrated with a flaccid penis then." A man can ejaculate when he is flaccid. She also said he did not penetrate her with his finger. Millie told Armstrong she had not engaged in sexual activity within the previous five days. Millie reported to Armstrong that her assailant said: "Don't yell, don't call the police. I will kill you." She did not say she lost consciousness during the incident.
Shalako was arrested three days later, on October 1, 2010. A search of his pockets yielded $70.15 in cash and two rings from Millie's purse.
Two months later, police obtained a DNA sample from him by swabbing the inside of his mouth. The vaginal swab from Millie tested positive for semen. When the DNA from the semen sample was compared with the DNA sample from Shalako's mouth, the two matched "perfectly." The probability that another individual would possess the same DNA profile was "approximately 1 in 800 quadrillion for U.S. Caucasians, 1 in 500 quintillion for African Americans, 1 in 1.7 quintillion for California Hispanics, and 1 in 850 quadrillion [for] general Asians."
Defense Case
Shalako's mother, Doreen M., testified about her drug use and her son's peripatetic childhood. She also testified that when Shalako was 15 or 16, he became romantically involved with a friend of hers who was "much older" than he was. He subsequently became romantically involved with two more of her friends, also older than he was. Shalako was arrested and eventually incarcerated at Pelican Bay State Prison for domestic violence against two of these three women. In prison, Shalako became romantically involved with Bonnie F., a correctional supervising cook. He was 20 years old; she was 50. When the relationship was discovered, Bonnie had to resign. She was prosecuted for having a sexual relationship with an inmate and served 19 days in jail. They remained in a committed relationship. Bonnie testified that sex with Shalako was "fantastic," but he sometimes experienced erectile dysfunction due to his drug use. Even when he was using drugs and might get irritated, he was never violent or aggressive with her. He never "raised a hand" to her or had "violent sex" with her.
Defendant testified he was helping his grandmother move some furniture on the day Millie came to Maria's apartment. He was shirtless, and he thought Millie "was checking [him] out." After Millie left, Shalako walked to a nearby liquor store, bought two tall cans of beer, and "got high" with a friend, smoking methamphetamine.
When he returned to Maria's apartment, the door was locked and he needed to use the bathroom. He decided not to knock on the door because he did not want his grandmother to see him high. He knocked on Millie's door and she let him in to use the bathroom. When he finished, he asked her if she had a boyfriend or husband and she smiled at him and looked back and forth at him and at the bedroom while answering him in a way he interpreted as a signal she "wanted to go to the bedroom" with him. He went into the bedroom, sat on the bed, and asked Millie to sit next to him. She did, saying, "I'm old, I'm old." They kissed and Shalako laid her down on the bed, grabbing her by the wrists. He removed her pants, then his own. He was trying to get an erection and have sex with her but it was not working. Millie said, "I'm dry, I'm dry," so Shalako spit on his hand and applied it to Millie's vagina and his penis. However, he could not achieve an erection. Millie said, "Hurry up, hurry up. Get hard." Millie was frustrated and said, "Let me help." She put her hand on his penis and tried to put it inside her. That was not working either and Millie said, "I don't feel nothing."
Shalako was "frustrated" and "embarrassed" and pulled up his pants. He told Millie he was leaving and taking her purse because he wanted to take it. When Millie tried to block him from leaving with her purse, Shalako grabbed her by the throat and pushed her back on the bed. She came after him again and he hit her in the face. He walked out of the bedroom, through the living room and down the stairs with Millie following him and demanding the return of her purse. When he opened the front door, she pushed the door closed and called out for Maria, and would not let him leave, so he hit her in the mouth. When he finally opened the door, his grandmother was standing right there and tried to block his escape. He pushed her and fled with Millie's purse.
Shalako thought Millie wanted to have sex with him, and her testimony that she did not want to made him feel "bad." He did not hear Millie call out "[n]o, no, no." She did not ask him to stop. He was "surprised" and "shocked" by the rape allegations. Shalako testified he never got an erection. He admitted he ejaculated during the sexual encounter with Millie but denied putting his penis in Millie's vagina. He believed his semen may have gotten inside of Millie's vagina despite the fact he never put his penis inside her vagina.
DISCUSSION
The standard instruction on forcible rape, which was given in this case, states that to prove the defendant guilty of that crime, the prosecution must prove (1) the defendant had sexual intercourse with a woman (2) who was not his wife and (3) who did not consent to the intercourse, (4) which the defendant accomplished by force, violence, duress, menace, or fear of immediate bodily injury to the woman. (CALCRIM No. 1000.) The standard instruction defines sexual intercourse as "any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required." (Ibid.) To this language the trial court added (at the prosecutor's request and over defense objection), "Any penetration into the female genitalia constitutes a sexual penetration. Penetration of the 'lips' or labia majora or other external genital organs is sufficient to constitute sexual penetration."
CALCRIM No. 1045, which relates to forcible sexual penetration by a foreign object, was similarly modified: " 'Sexual penetration' means penetration, however slight, of the genital opening of the other person (Millie L.) for the purpose of sexual abuse, arousal or gratification. Any penetration into the female genitalia constitutes a sexual penetration. Penetration of the 'lips' or labia majora or other external genital organs is sufficient to constitute sexual penetration."
Shalako asserts the court committed prejudicial instructional error by giving the prosecutor's requested modification. He argues the court violated its duty " ' "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." ' " (People v. Alexander (2010) 49 Cal.4th 846, 920-921.) He argues that the standard definition of sexual penetration used in CALCRIM Nos. 1000 and 1045 already adequately incorporates the definitions of penetration articulated in extant case law. (People v. Quintana (2001) 89 Cal.App.4th 1362, 1371 (Quintana); (People v. Karsai (1982) 131 Cal.App.3d 224, 233-234 (Karsai), disapproved on another ground in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8; People v. Dunn (2012) 205 Cal.App.4th 1086, 1097.) In particular, he argues Karsai does not support the modification to the standard instruction given here, and that the use of the word "lips" in the modified instruction was "particularly problematic because the jury was largely left to their own devices and own imagination as to how this portion of the instruction would apply to the crimes charged [here]." Finally, he claims the error was prejudicial and requires reversal because the evidence of penetration was equivocal. We disagree.
"A court is required to instruct the jury on the points of law applicable to the case, and no particular form is required as long as the instructions are complete and correctly state the law. [Citation.] In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights. In making this determination we consider the specific language under challenge and, if necessary, the instructions as a whole." (People v. Andrade (2000) 85 Cal.App.4th 579, 585; People v. Delacerda (2015) 236 Cal.App.4th 282, 288.)
To determine if the modification correctly stated the law, we begin with the statutory language of section 263. "The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime." (§ 263, enacted in 1872, amended by Stats. 1979, ch. 994, § 3, p. 3384.) This statutory language has been referenced in rape and attempted rape cases where defendants have challenged their convictions on the ground that sufficient penetration was not proven. These cases evince an understanding that section 263 is satisfied if the rapist's penis penetrates the victim's external genitalia, i.e., the outer lips of the vagina; no entry of the vaginal canal itself is required. (See, e.g., People v. Esposti (1947) 82 Cal.App.2d 76, 77-78 [in attempted rape case, "[t]he doctor testified that the lips of the vagina might have been penetrated. This would be sufficient to constitute rape. (Pen. Code, § 263.)"]; People v. George (1949) 91 Cal.App.2d 537, 545-546 [victim's testimony she heard the rapists complain she was so tight "they couldn't get anywhere" did not undermine her testimony they inserted their penises in her vagina, where doctor opined that "because of the smallness of prosecutrix's vagina the average male organ could not gain complete entrance"]; People v. Strickland (1955) 134 Cal.App.2d 815, 817-818 [10-year-old girl's "childish vocabulary" describing act "indicated sufficient penetration to support the charge of rape" where physical examination showed "abrasions on both labia and small lacerations on the hymen."].)
In Karsai, supra, 131 Cal.App.3d 224, the defendant claimed both instructional error and insufficient evidence of penetration. (Id. at p. 231.) "[T]he victim testified [the defendant] did not penetrate her vagina with his penis." (Id. at p. 232.) She testified that the "defendant's penis was erect and that he pushed it between her 'lips.' Defendant did not succeed in full penetration. Defendant denied any penetration. He testified that he was not erect because he had just ejaculated during the oral copulation, and that he merely rubbed his flaccid penis against the victim's genitalia." (Ibid.) Relying on the "universal rule" among out-of-state authorities in the absence of "California law directly on point," the Karsai court concluded "[t]he penetration which is required is sexual penetration and not vaginal penetration. Penetration of the external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina. (Id. at pp. 232-233.) Accordingly, the court rejected the defendant's substantial evidence claim. (Id. at p. 233.)
The Karsai court correctly noted the statements made in the Esposti and George cases cited above were dicta, in that Esposti was an attempted rape case, and George involved actual if incomplete penetration of the vagina. (Karsai, supra, 131 Cal.App.3d at p. 233, fn. 2.)
The trial court in Karsai initially declined to instruct, at the prosecutor's request, that " '[p]enetration of the lips of a female's vagina is sufficient to constitute rape.' " (Karsai, supra, 131 Cal.App.3d at p. 233.) But the court advised the parties it would revisit the question if the jury indicated it was having difficulty understanding the concept of penetration and requested clarification. The jury requested clarification of " '[t]he definition of when penetration occurs in relation to external female genitalia.' " (Id. at pp. 233-234.) At that point, the court instructed the jury: " 'You recall that the court instructed you that if the other requisite elements of the crime of rape are established any sexual penetration, however slight, is sufficient to complete the crime. The word penetrate means to pass, extend, or pierce into or through something. Any penetration into the female genitalia constitutes a sexual penetration.' " (Id. at p. 234.) The Karsai court did not pass on the correctness of the prosecution's requested instruction, but it rejected the defendant's argument that the trial court's clarifying instruction could have led the jury to convict him of rape because he admitted "rubb[ing] his penis against the victim's sexual parts." (Ibid.) The appellate court found the dictionary definition of penetration was not confusing. "The jury's concern appears to have been the same as defendant's; that is, whether penetration of the external sexual organs is sufficient. Since the court properly instructed in that regard we find no error." (Ibid.)
In People v. Quintana, supra, 89 Cal.App.4th 1362, the defendant was convicted of foreign object penetration of a child under 14 (§ 289, subd. (j)) after a court trial at which the five-year-old victim's preliminary hearing testimony was admitted in lieu of her live testimony pursuant to a sentence bargain. (Id. at p. 1364.) At the preliminary hearing, the victim testified that the defendant touched her with his hand between her legs, outside of her panties, and that it hurt. He did not move his fingers. She immediately told her mother and a friend. (Ibid.) The friend testified at trial that the victim told her and the victim's mother that the defendant "put his hand in her pants, 'poking her.' " Asked where she was poked, the child pointed to her vagina and stated, "[I]t burns," when her mother wiped her vagina with a tissue. (Ibid.) The physician's assistant who performed the sexual assault examination testified that the injuries to the victim included swelling of the labia majora; irritation of the perihymenal tissue; an abnormally shaped border of the hymen; and a laceration and broken capillaries at the posterior fourchette. (Id. at p. 1365.) She explained that a five-year-old's labia majora " 'are usually quite plum[p] and cover the genital area' " and that the hymenal tissues, which are hidden under " 'several layers of material,' " are " 'not easy to get to.' " (Id. at p. 1367.) She opined that the injuries "were consistent with 'blunt force trauma or digital penetration to the hymeneal tissue' " and "could have been inflicted by digital penetration through panties." (Id. at p. 1365.)
On appeal, the defendant argued his conviction must be reversed because there was no evidence of vaginal penetration. (Quintana, supra, 89 Cal.App.4th at p. 1366.) The Quintana court disagreed. Relying in part on Karsai's analysis of section 263, the Quintana court similarly interpreted "sexual penetration" for the purposes of foreign object penetration under section 289 as not requiring penetration of the vaginal opening. (Id. at p. 1367.)
For the purposes of section 289, "sexual penetration" is defined as "the act of causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k).) The Quintana court noted that the term " 'genital opening' is not synonymous with a 'vaginal' opening . . . . The vagina is only one part of the female genitalia, which also include inter alia the labia majora, labia minora, and the clitoris. [Citations.] Thus, 'genital' opening does not necessarily mean 'vaginal' opening." (Quintana, supra, 89 Cal.App.4th at p. 1367.) Based on the medical definition of female genitalia and the anatomical facts to which the sexual assault examiner testified, the Quintana court reasoned that the labia majora constituted a "genital opening" through which appellant's finger penetrated. (Ibid.) "[S]tatutes relating to the same subject are to be harmonized if possible. [Citations.] The 'sexual penetration' element of section 289 can be readily harmonized with the 'sexual penetration' element of section 263 by interpreting the words 'genital . . . opening[]' in section 263 to refer to penetration of the labia majora in accordance with Karsai, rather than penetration of the vagina as appellant posits. Appellant offers no rationale for distinguishing the degree of penetration which constitutes rape from that which constitutes object penetration. On the other hand, there are a host of reasons, ranging from statutory language and case precedent to considerations of anatomy and policy, supporting the conclusion we reach here that the degree of penetration required to commit these crimes is the same." (Quintana, at p. 1366.)
Based on Karsai and Quintana, the court's modification of the standard CALCRIM instructions here was a correct statement of the law. In our view, these cases are not fairly distinguishable from this case on the question whether penetration of the external genitalia, i.e., the "lips" of the labia majora and/or labia minora, satisfies the requirement of slight penetration under section 263. We are not persuaded that the use of the word "lips" was "problematic" or left to the jury's imagination how this part of the instruction applied to the facts. The modification echoed the language used by the case law and was easily relatable to the testimony of the nurse practitioner, Millie L., and Shalako. To the extent the modification was a pinpoint instruction, it was not argumentative or merely duplicative of other instructions, and its factual predicate was supported by nurse practitioner Armstrong's explanation, requested by the jury, of the parts of female anatomy that constitute genitalia. (See People v. Bolden (2002) 29 Cal.4th 515, 559.) The instruction did not " 'endorse the prosecution's theory or lessen its burden of proof.' " (People v. Boyette (2002) 29 Cal.4th 381, 439.) In short, we find no reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights. No error appears.
However, even if we assume for the sake of argument the court erred by straying from pattern instructions on an element of the offense, we find any assumed error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18. Under Chapman, instructional error requires reversal unless it appears beyond a reasonable doubt that the error did not contribute to the jury's verdict. (Chapman, at p. 24; People v. Flood (1998) 18 Cal.4th 470, 504.) Here, Millie L. testified defendant's penis went inside her, and the jury was entitled to believe her on that point even if some of her other testimony was less than clear. Equally important, the medical evidence established beyond any reasonable doubt that defendant penetrated Millie L.'s vagina to some degree, because his semen was found inside her vagina. Thus, however slight penetration may be and still satisfy section 263, the penetration in this case exceeded that low bar.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.