People v. Jackson CA5 ( 2015 )

Filed 2/18/15 P. v. Jackson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F066062
Plaintiff and Respondent,
(Super. Ct. No. F12900608)
v.
JONATHAN JAMES JACKSON, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Don Penner,
Judge.
Michelle May Peterson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Jonathan James Jackson was sentenced to a term of seven years eight
months in state prison following a no contest plea. On appeal, defendant contends the
record does not support the trial court’s ruling that he was competent to enter a plea
because he suffered from a number of conditions recognized in a psychiatrist’s report,
and no other expert found him to be competent. Further, defendant maintains the trial
court erred by not appointing the director of the regional center for the developmentally
disabled after the psychiatrist’s report provided substantial evidence of his incompetence
on the basis of a developmental disability. Next, defendant argues the judgment should
be reversed because the record shows he pled to a legal impossibility. In a related
argument, he contends the matter should be remanded due to the legal inadequacy of the
factual basis inquiry. Finally, defendant maintains the record establishes his plea was not
knowing, voluntary, or intelligent. We find no error and will affirm the judgment.
RELEVANT PROCEDURAL BACKGROUND1
A January 31, 2012, complaint alleged defendant had violated (1) Penal Code2
section 422 by willfully and unlawfully threatening to commit a crime resulting in injury
or death to Kimberly Hall, and (2) section 136.1, subdivision (a)(1), by dissuading Hall
from giving testimony at a trial. Additionally, it was alleged defendant had been
convicted of a prior serious felony and had served a prior prison term.
On May 18, 2012, defendant withdrew his previously entered not guilty pleas and
pled no contest to the criminal threat count and admitted the associated allegations.
Count 2 was to be dismissed and a potential sentence of seven years eight months was
indicated by the court.
Prior to sentencing, however, doubts concerning defendant’s competency were
raised by defense counsel. Criminal proceedings were suspended and the court ordered a
mental evaluation be prepared by a court-appointed physician.
Ultimately, the court found defendant to be competent and proceedings were
reinstated. Thereafter, defendant was sentenced in accordance with his plea.
1The facts of the underlying crime will be recited where necessary in our discussion.
2Unless otherwise indicated, all further statutory references are to the Penal Code.
2.
DISCUSSION3
I. The Evidence of Competency
Defendant challenges the trial court’s ruling that he was competent, claiming the
report of Harold L. Seymour, Ph.D., as the sole report, was uncontested. As such,
defendant asserts the trial court’s ruling is subject to de novo review. He points to
various portions of Dr. Seymour’s report to support his argument that there was ample
evidence of his incompetence, including, but not limited to, certain developmental
disabilities and anxiety. We do not agree with defendant and find the evidence sufficient
to support the trial court’s ruling he was competent.
A. Applicable Legal Standards
A criminal defendant “cannot be tried or adjudged to punishment … while that
person is mentally incompetent.” (§ 1367, subd. (a).) “A defendant is mentally
incompetent” if a mental disorder prevents the defendant from understanding “the nature
of the criminal proceedings” or assisting counsel “in the conduct of a defense in a rational
manner.” (Ibid.) Section 1368 sets forth the procedure for implementing section 1367
protections.
More specifically, state law and federal due process bar the trial or conviction of a
mentally incompetent defendant. (People v. Rogers (2006) 39 Cal. 4th 826, 846.) Both
3Defendant’s opening brief is 115 pages; his reply brief is 50 pages. Each employs
extensive headings and subheadings. Nevertheless, this court will not respond in like fashion.
In People v. Garcia (2002) 97 Cal. App. 4th 847, we noted an opinion that does not
“establish a new rule of law, apply an existing rule to a set of facts significantly different from
the facts involved in a published opinion, modify or criticize an existing rule of law, resolve or
create an apparent conflict in the law, address a legal issue of continuing public interest, or make
a significant contribution to the legal literature by reviewing either the development of a
common law rule or the legislative or judicial history of a provision of a constitution, statute, or
other written law,” is one that “does not merit extensive factual or legal statement” and thus does
not require “[a] meticulously crafted but unpublished legal essay, replete with extended analyses
of law and expositions of reasoning and which distinguishes authorities and responds to every
nuance of argument in the parties’ briefs.” (Id. at p. 851.) This case does not warrant
publication. Further, the court will not devote its “limited human and material resources far out
of proportion to the utility of the effort” required to determine the legal correctness of the trial
court’s ruling. (Ibid.)
3.
“require a trial judge to suspend trial proceedings and conduct a
competency hearing whenever the court is presented with substantial
evidence of incompetence, that is, evidence that raises a reasonable or bona
fide doubt concerning the defendant’s competence to stand trial.
[Citations.] The court’s duty to conduct a competency hearing may arise at
any time prior to judgment. [Citations.] Evidence of incompetence may
emanate from several sources, including the defendant’s demeanor,
irrational behavior, and prior mental evaluations. [Citations.] But to be
entitled to a competency hearing, ‘a defendant must exhibit more than … a
preexisting psychiatric condition that has little bearing on the question …
whether the defendant can assist his defense counsel.’ [Citations.]”
(People v. Rogers, supra, at p. 847.)
“Under California law, a person is incompetent to stand trial ‘if, as a result of
mental disorder or developmental disability, the defendant is unable to understand the
nature of the criminal proceedings or to assist counsel in the conduct of a defense in a
rational manner.’ (§ 1367, subd. (a).)” (People v. Young (2005) 34 Cal. 4th 1149, 1216;
see People v. Koontz (2002) 27 Cal. 4th 1041, 1063; see also People v. Garcia (2008) 159
Cal. App. 4th 163, 170.) “A defendant is presumed competent unless the contrary is
proven by a preponderance of the evidence.” (People v. Lawley (2002) 27 Cal. 4th 102,
131; see § 1369, subd. (f).)
On appeal, the reviewing court conducts a deferential standard of review to
determine whether substantial evidence supports the trial court’s findings. (People v.
Dunkle (2005) 36 Cal. 4th 861, 885, disapproved on other grounds in People v. Doolin
(2009) 45 Cal. 4th 390, 421, fn. 22; People v. Marshall (1997) 15 Cal. 4th 1, 31; People v.
Kaplan (2007) 149 Cal. App. 4th 372, 382–383; People v. Castro (2000) 78 Cal. App. 4th
1402, 1418, disapproved on other grounds in People v. Leonard (2007) 40 Cal. 4th 1370,
1391, fn. 3.)
B. The Relevant Proceedings
On July 13, 2012, defense counsel advised the court that he had a doubt as to
defendant’s competency. The court suspended criminal proceedings and appointed
Dr. Seymour to assess defendant.
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Dr. Seymour evaluated defendant on August 7, 2012. His confidential report was
filed with the court on October 12, 2012. The doctor concluded as follows:
“OPINION: Based on the results of this evaluation, it appears that
[defendant] has entered into a plea agreement that he is unable to read. He
accepted the plea agreement knowing that it would result in 7 years in
prison, despite his assertion that he has not committed any of the alleged
crimes.
“Based on [defendant]’s self-report, he chose to sign a plea
agreement primarily to escape the recurrent anxiety and confusion he
experiences when he is in the courtroom. It appears to this examiner that
this is an example of impaired reasoning as it relates to the settling of his
criminal case.
“[Defendant] processes a bit slowly and he will require a good deal
of assistance in order to proceed with his case. He does not presently
appear competent due to his anxiety, which overwhelms his limited ability
to exercise adequate reasoning skills.
“[Defendant] would probably benefit from a psychiatric consultation
for consideration of medication to manage his anxiety symptoms. Some
basic education about the criminal trial process would also be helpful in
restoring [him] to competency.
“RECOMMENDATION: Based on the information gathered
during this evaluation, it is respectfully recommended that the Court find
[defendant] to be not competent to stand trial.”
On October 12, 2012, the issue of defendant’s competency was argued and
submitted, and the court made its ruling thereafter:
[DEFENSE COUNSEL]: Your Honor, we are asking the court to find
[defendant] not competent to stand trial based on Dr. [Seymour]’s report. I
do realize that there was a change of plea in this case and that he
appropriately answered the questions when the court was going through
that change of plea form, however I think that the evaluation by the doctor
is accurate and that [defendant] is not competent to stand trial. Your
Honor, in my experience as a defense attorney, I believe that a lot of clients
answer questions appropriately when they may not completely understand.
They answer questions appropriately, especially in cases where the client is
truly 1368. They may answer the right way but it doesn’t necessarily mean
that they were competent at the time. He could have been told what
answers to give. I don’t know what attorney took the plea in that case.
[¶] … [¶] But I don’t believe that’s necessarily dispositive of his
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competency and I believe that there should be great weight given to
Dr. [Seymour]’s report and evaluation and recommendation and that he
should be treated at a state hospital prior to proceeding.
“THE COURT: All right. Mr. [Prosecutor], do you want to be heard?
“[PROSECUTOR]: We’ll submit, Your Honor. [¶] …[¶]
“THE COURT: Dr. [Seymour]’s report, which the Court has read and
considered is dated the 7th of August, I believe, 2012. The doctor indicates
that he reviewed the complaints, the plea form, jail medical records and I’ll
note for the record that there was no change of plea transcript at the time in
the court file that [the doctor] could have reviewed. On page 2 of [his]
report under the circumstances of the alleged offense and the prior legal
categories, the doctor notes that the defendant’s information was …
historically accurate, that he knew that he was on misdemeanor probation,
including a denial by the defendant during the interview, that he was guilty
of the case for which he was on misdemeanor probation. He also indicated
the defendant knew that he had a 2004, as he said, GTA conviction that was
a strike. The court takes GTA to mean grand theft auto and given that his
strike in 2004 was for 215 carjacking, I believe that is a reasonable
characterization for a lay person to characterize that 215 as grand theft auto.
The defendant indicated that he was in Special Ed classes during his
education. He also said that he worked in home health care services as a
provider for a number of years and his only disability was for asthma and
back problems.
“On page 3, there’s a reference to the fact that the defendant has had
no contact with jail psychiatric services. The doctor indicated that the
defendant’s performance on the revised competency assessment instrument
or the CAI was quote as he says mixed. The defendant did know his case
could go to trial, he knew what a not guilty plea was, he knew what a no
contest plea was. He did not know what a guilty plea was and he indicated
that he understood plea bargaining.
“On page 4, the doctor opines concern about the decision by the
defendant to accept a plea agreement and that he could not read but he does
state that the revised competency assessment scores were quote, in his
words, not especially weak. On page 3 again, he indicates the defendant
thought the exposure on this case was 18 years when it was really a
maximum I believe of 12.
“On page 3, Dr. [Seymour] indicates the defendant admitted a great
deal of anxiety in the courtroom and that ultimately, this is the crux of
Dr. [Seymour]’s opinion, that the defendant is incompetent. He diagnosed
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the defendant with an anxiety disorder not otherwise specified and that he
had borderline intellectual functioning and I’ll note for the record that I …
believe most people in a courtroom have anxiety at the time that they make
appearances in the courtroom. He said that the defendant heard—told him
at the evaluation that the defendant had heard his new attorney … tell the
Judge that there is reason to believe that he, the defendant, did not
understand what he was doing when he entered this no contest plea.
“On page 4, the doctor opines that the defendant pleaded because of
his anxiety over coming to court and not because he viewed himself as
guilty. It is the court’s opinion that this conclusion oversimplifies the
options that the defendant had at the time of the change of plea.
Dr. [Seymour] also makes much of the Defendant’s approach to any
problem is to call someone to solve his problems and in the doctor’s
opinion this shows that the defendant, in his words, deferred, that’s his
words, defers when confronted with decisions about making—when
confronted with a task of making decisions. It is the court’s observation
that if you’re a poor reader that seeking a verbal consultation from someone
seems to be a reasonable option to me. If a reader indicated that he would
quote call the Internet or something characterized as seeking information on
the Internet, I don’t perceive that as to be some evidence that the defendant
or that individual would be deferring to someone else’s opinion just
because they’re seeking information from another source. [Defendant],
because he cannot read according to Dr. [Seymour]s’ verbal opinions
would seem to me to be appropriate for him.
“The doctor’s opinion that the defendant is incompetent to stand trial
is in the court’s opinion equivocal. He says [defendant] processes a bit
slowly and he will require a good deal of assistance in order to proceed
with this case. He does not presently appear competent due to his anxiety
which overwhelms his limited ability to exercise adequate reasoning skills.
“On page 3 of the … doctor’s report, the doctor reports the
defendant did not know what a jury was. On page 2 of the change of plea
transcript, the defendant indicated he had not been through a jury trial
which was not an answer to a yes or no question, which seemed to …
indicate to me that the defendant does have some understanding of what a
jury trial was and that that contradicts the … statement that the defendant
made to Dr. [Seymour] that he did not know what a jury trial included.
“On page 8, he also said in the change of plea transcript that he had
read and understood the form. That was in response I believe to a yes or no
question and I do understand the argument by … [defense counsel] that
individuals are sometimes programmed during a change of plea hearing to
answer questions in a robotic fashion. While there is some support in the
7.
court’s mind to question whether the defendant should or should not have
entered this no contest plea, I think that is really what [the doctor]’s report
is about. And to some extent, that opinion has some relevance to the issue
of competency that anyone can always second-guess a plea bargain
decision from either side of the aisle and while Dr. [Seymour] thinks this
may have been a bad decision that was caused by the defendant’s anxiety
for the courtroom, there is another consideration which I believe [the
doctor] did not consider or discuss in his report which was the defendant’s
exposure on this charge. The presumption in this hearing is that the
defendant is competent.
“The court makes a finding there is insufficient evidence to meet the
burden of proof which is a preponderance of the evidence that the
defendant is not competent. For those reasons, the court makes a finding
that he is competent. Criminal proceedings are reinstated.”
C. Our Analysis
Initially, we note the report prepared by Dr. Seymour concerned defendant’s then-
present competency. The report does not amount to a finding that defendant was not
competent at the time he entered his no contest pleas.
In any event, the trial court was not required to accept Dr. Seymour’s opinion,
uncontradicted though it may have been, that defendant was incompetent. A trial court
may properly assess the weight and persuasiveness of the expert’s report. (People v.
Lawley, supra, 27 Cal.4th at p. 132.) It may not arbitrarily disregard, however, an
expert’s uncontradicted recommendation. (People v. Rasmuson (2006) 145 Cal. App. 4th
1487, 1509.)
The issue of defendant’s competency was submitted for decision on the basis of
Dr. Seymour’s report alone. Although the doctor did not testify “under oath with
particularity that, because of mental illness, the [defendant] is incapable of understanding
the proceedings or assisting in his defense” (People v. Lewis and Oliver (2006) 39
Cal. 4th 970, 1047), his report serves that purpose by virtue of the court’s appointment.
(People v. Tomas (1977) 74 Cal. App. 3d 75, 91.)
Nonetheless, the trial court did not “arbitrarily disregard” Dr. Seymour’s
recommendation. Rather, the court indicated why it chose not to accept the doctor’s
8.
opinion, specifically identifying portions of the report it believed were lacking in support
or were otherwise inconsistent. Viewing the evidence in the light most favorable to the
trial court’s finding defendant was competent reveals substantial and credible evidence in
support of that finding.
For but one example, the trial court noted that despite the doctor’s “mixed” finding
following the competency assessment instrument report, defendant was aware “his case
could go to trial,” and that a defendant could plead guilty or no contest to charges.
Defendant also understood plea bargaining, the basic roles of courtroom personnel, and
the fact a defendant may not be compelled to testify. A review of the doctor’s report also
reveals defendant understood the difference between a misdemeanor and a felony as he
advised the doctor he was “on misdemeanor probation following a plea deal,” and he had
a previous conviction amounting to a “felony strike.” It also reveals defendant
understood the purpose behind a restraining order, alleging he “avoided all contact with
[the victim] following the July 2011 case.” This amounts to substantial and credible
evidence defendant does not suffer from a mental disorder preventing him from
understanding the nature of the criminal proceedings or from assisting counsel in his
defense.
Another example concerns the trial court’s comments regarding Dr. Seymour’s
diagnostic impression defendant suffers from an anxiety disorder not otherwise specified.
As the trial court noted, defendant “admitted a great deal of anxiety” in the courtroom,
yet that is a common response to persons making similar appearances. Other than
defendant’s self-reported anxiety, there is no other evidence to indicate defendant has an
anxiety disorder. Defendant also reported to Dr. Seymour he was in good health, he was
not taking any prescribed medications, and he denied any history of “mental health
problems or treatment.” He did “acknowledge some history of anger” when frustrated,
but also indicated his mood was “generally fine.” The “Jail Medical records” reviewed
by Dr. Seymour did not include any reference to an anxiety disorder and revealed
defendant “has had no contact with Jail Psychiatric Services.” Even assuming defendant
9.
suffers from an anxiety disorder, that fact does not require a finding of incompetence.
Rather, the issue is whether defendant is able to understand the proceedings against him
and/or assist his attorney. (§ 1367, subd. (a).) On this record, there is sufficient evidence
to support the trial court’s finding defendant was competent.
Lastly, we note the trial court could properly consider its own observations of
defendant on previous occasions as well. (People v. Lawley, supra, 27 Cal.4th at p. 136.)
It can be reasonably inferred from the trial court’s references to defendant’s responses
during the change of plea proceeding that the court had no concerns as to defendant’s
ability to understand the proceedings or his ability to assist defense counsel on that
occasion.
In sum, we find the trial court’s ruling to be supported by substantial and credible
evidence.
II. Incompetence Due to Developmental Disability
Defendant contends that, even assuming arguendo there is evidence of defendant’s
competence, because there is “also significant evidence of incompetence” due to a
developmental disability, the trial court was required to appoint the director of the
regional center for the developmentally disabled pursuant to section 1369, subdivision
(a). We hold otherwise.
Section 1369 requires the trial court to refer a defendant to the director of the
regional center “[i]f it is suspected the defendant is developmentally disabled ….” To
prevail on this claim, defendant must show Dr. Seymour’s report provided substantial
evidence he was developmentally disabled. (People v. Lewis and Oliver, supra, 39
Cal.4th at p. 1047; People v. Castro, supra, 78 Cal.App.4th at pp. 1416-1418.)
“Substantial evidence is evidence that raises a reasonable doubt” on the issue. (People v.
Castro, supra, at p. 1417.)
A developmental disability, for the purpose of determining mental competence, is
defined as “a disability that originates before an individual attains age 18, continues, or
can be expected to continue, indefinitely and constitutes a substantial handicap for the
10.
individual, and shall not include other handicapping conditions that are solely physical in
nature. As defined by the Director of Developmental Services, in consultation with the
Superintendent of Public Instruction, this term shall include mental retardation, cerebral
palsy, epilepsy, and autism. This term shall also include handicapping conditions found
to be closely related to mental retardation or to require treatment similar to that required
for mentally retarded individuals ….” (Former § 1370.1, subd. (a)(1)(H).4) Mental
retardation is “the condition of significantly subaverage general intellectual functioning
existing concurrently with deficits in adaptive behavior and manifested before the age of
18.” (Former § 1376, subd. (a); see fn. 4, ante.) “‘Mild’ mental retardation is typically
used to describe people with an IQ level of 50–55 to approximately 70.” (Atkins v.
Virginia (2002) 536 U.S. 304, 308, fn. 3, citing American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) pp. 42–43.) The
California Legislature, however, “has chosen not to include a numerical IQ score as part
of the definition of ‘mentally retarded.’” (In re Hawthorne (2005) 35 Cal. 4th 40, 48.)
Here, after administering the “Revised Competency Assessment Instrument,” the
“Reading Scale of the Wide Range Achievement Test—Revised … [and] the Judgment
items from the Cognistat” test, Dr. Seymour’s diagnostic impression included borderline
intellectual functioning at Axis II. Defendant does not suffer from cerebral palsy,
epilepsy or autism. And significantly, Dr. Seymour’s report does not use either the term
“mentally retarded” or “developmentally disabled” to describe defendant. The doctor’s
finding is somewhat equivocal given his statement in the “Mental Status Exam” portion
of his report that defendant “appears to be functioning in the Borderline range of
intelligence.” (Italics added.) Additionally, the doctor’s report refers to his findings on
the Revised Competency Assessment Instrument as “mixed” and “not especially weak.”
4Effective January 1, 2013, the term “mental retardation” in sections 1370.1 and 1376
was replaced by the term “intellectual disability” without substantive change in the definitions.
(Stats. 2012, ch. 457, § 1.)
11.
Thus, the doctor’s own findings do not amount to sufficient evidence in support of his
diagnostic impression and the opinion that follows.
The fact defendant may “process[] a bit slowly,” was in special education classes,
or even read at a second grade level does not amount to “a substantial handicap”
triggering appointment of the director of the regional center. Further, Dr. Seymour’s
report notes he was “allowed to examine [defendant]’s Jail Medical records,” but the
doctor did not indicate those records included any particular finding or test related to
defendant’s intellectual functioning amounting to a developmental disability. It can be
inferred from Dr. Seymour’s findings defendant did not suffer from a substantial mental
handicap given his completion of a high school education and ability to maintain
employment providing home health care services to his mother for a number of years.
We acknowledge defendant’s complaints on appeal that Dr. Seymour had no
particular expertise in the area of developmental disability. Yet, it is significant to note
both parties stipulated the court could make its competency determination solely on the
basis of Dr. Seymour’s report. Hence, defendant should not now be heard to complain
about the doctor’s qualifications or lack thereof. (Cf. People v. Gurule (2002) 28 Cal. 4th
557, 623 [generally, a party entering into voluntary stipulation is precluded on appeal
from arguing defects relating to that stipulation].) Furthermore, we note defense
counsel’s argument prior to the trial court’s competency ruling does not suggest the court
should find a developmental disability or even address a developmental disability.
Rather, the focus of counsel’s argument was on defendant’s ability to understand the
criminal proceedings and, in particular, his ability to understand the questions posed to
him during the change of plea hearing and to answer those questions accordingly.
In People v. Castro, supra, 78 Cal. App. 4th 1402, the defendant was charged with
murder and various other crimes. At defense counsel’s request, the trial court appointed a
psychotherapist to examine her to determine if her mental condition might be the basis
for a defense. (Evid. Code, § 1017.) The psychotherapist submitted a report saying the
defendant was developmentally disabled. Counsel therefore asked the court to appoint
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the director of the regional center to examine her. (§ 1369, subd. (a).) The court denied
the request without prejudice based on its own observation the defendant did not seem to
be disabled. Counsel later renewed the request, supported this time by a report from the
Department of Rehabilitation indicating the defendant had a “‘most severe’”
developmental disability. Instead of appointing the director of the regional center to
examine her, the court appointed a psychiatrist who reported the defendant had an
unspecified learning disability, but no psychiatric disorder. (People v. Castro, supra, at
pp. 1410-1411.)
The defendant then pleaded no contest to second degree murder in exchange for
dismissal of the other charges. Shortly afterward, however, she moved to withdraw her
plea and to replace her attorney. The court granted the second request but not the first.
The new attorney filed another section 1368 competency motion. Once again the court
appointed a psychiatrist rather than the director of the regional center. This psychiatrist
said essentially the same thing as the first one: the defendant had an unspecified learning
disability but no psychiatric disease. (People v. Castro, supra, 78 Cal.App.4th at p.
1412.)
The defendant then filed another motion to withdraw her plea on the ground she
had been unable to understand the consequences. A clinical psychologist testified in
support of the motion that he had tested the defendant and determined she had an IQ
between 55 and 65. He opined on this basis the defendant had not been mentally
competent to enter her no contest plea. One of the psychiatrists who had examined her
earlier testified in opposition to the motion that, while the defendant had a learning
disability, he had found no evidence of mental retardation. The court denied the motion.
(People v. Castro, supra, 78 Cal.App.4th at p. 1412.)
At sentencing, the defendant submitted evidence in mitigation consisting of school
records indicating she functioned at a second or third grade level and had been identified
as mentally retarded. She also included records from the Department of Rehabilitation
saying she had an IQ of 61 and was classified as mentally retarded with “‘neurological
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deficits.’” Notwithstanding this evidence, the court sentenced her to a term of 15 years to
life in prison. (People v. Castro, supra, 78 Cal.App.4th at p. 1413.)
This court held the opinion of a mental health professional that the defendant was
mentally incompetent constitutes substantial evidence sufficient, as a matter of law, to
trigger the court’s duties under section 1368. The court may not substitute its own
subjective opinion about a defendant’s mental condition for such objective evidence. We
held further that when the condition appears to be the result of a developmental disability,
the court must appoint the director of the regional center, or the director’s designee, to
examine the defendant. (People v. Castro, supra, 78 Cal.App.4th at pp. 1415-1418.)
In Castro, there was abundant evidence the defendant had a developmental
disability. Here, in contrast, there is no such evidence. In Castro, the trial court
improperly substituted its own inexpert assessment of the defendant’s condition for that
of several professionals. That is not the case here. It appears defendant’s argument
confuses a developmental disability with a learning disability. They are not the same
thing. There may be sufficient evidence of a learning disability, but the same cannot be
said of a developmental disability.
We disagree with defendant’s contention there was substantial evidence of
incompetence due to a developmental disability that obligated the court to appoint the
regional director pursuant to section 1369.
In any event, we conclude defendant was not prejudiced by the trial court’s failure
to appoint the director to evaluate him because any error did not deprive defendant of a
fair trial to determine his competency. (People v. Leonard, supra, 40 Cal.4th at pp.
1390–1391.) As we explained above more fully, the trial court determined defendant had
a rational and factual understanding of the nature of the legal proceedings and the ability
to assist in his defense. Further, Dr. Seymour’s report, although concluding defendant
was incompetent, did not find defendant suffered from any developmental disability.
Thus, he was not prejudiced by the court’s failure to appoint the director of the regional
center.
14.
III. A Plea to a Legal Impossibility
Next, defendant asserts it is legally impossible to violate section 422 with “a
conditional threat” “contingent upon a nonexistent event.” As a result, he contends
reversal is required.
A. Case No. F11904321
Defendant initially entered pleas of not guilty in an earlier action to one felony
count of criminal threats (§ 422) and one misdemeanor count of vandalism (§ 594, subd.
(a)(2)); this earlier matter concerned the same victim—Kimberly Hall—and the crimes
were alleged to have occurred on July 10, 2011.
According to the probation report prepared in the instant matter, and more
specifically to Fresno Police Department crime report No. 11-48907, defendant
threatened to “‘beat [the victim’s] ass and burn [her] house down’” after the victim
knocked on his mother’s door and told him they were no longer friends. On that same
occasion, the defendant broke the kitchen window at the victim’s residence with a stick.
On January 26, 2012, defendant agreed to withdraw his earlier not guilty pleas in
light of the People’s offer, wherein the felony criminal threat count would be reduced to a
misdemeanor pursuant to section 17, subdivision (b). The trial court accepted
defendant’s no contest plea to each misdemeanor violation alleged and set the matter for
sentencing to be heard on February 16, 2012.
B. Case No. F12900608
According to the probation report, and in particular Fresno Police Department
crime report No. 12-7061, on January 28, 2012, defendant shouted profanities at the
victim as she passed him in the apartment complex. When the victim returned from
picking up her child at a nearby park, defendant was standing in front of her apartment
door. He again shouted profanities at the victim, adding “she needed to ‘watch her back’
and if she testified against him on January 30, 2012, that he would ‘kick her ass.’”
Defendant also threatened to burn her apartment down. He continued to use profanities,
15.
but eventually left the area. There was a witness to these events and defendant directed
profanities to the witness as well.
C. Our Analysis
Here then, before sentencing could be held in the earlier case and only two days
after he entered no contest pleas in that matter, defendant was alleged to have committed
the instant crimes against the same victim: criminal threats (§ 422) and dissuading a
witness from giving testimony (§ 136.1, subd. (a)(1)).
Defendant argues that because he pled no contest in the earlier case (F11904321),
and because of those no contest pleas there would be no trial in that matter, it was legally
impossible for him to have committed the criminal threat of January 28, 2012, wherein he
threatened to physically harm Kimberly Hall and to “burn … down” her apartment if she
were to testify against him on January 30, 2012. We do not agree.
An appellant may successfully assert his or her admission, guilty plea, or no
contest plea included a legal impossibility. (People v. Soriano (1992) 4 Cal. App. 4th 781,
783.) In Soriano, the defendant pleaded guilty to violating section 115 by attempting “to
file a ‘forged instrument, to wit, a death certificate.’” (People v. Soriano, supra, at p.
783.) However, a death certificate is not an “instrument” within the meaning of section
115. (Soriano, at p. 783.) The Court of Appeal reversed the judgment, explaining:
“[W]hat we have here is a legal impossibility. [The defendant] could not have been
guilty of violating … section 115 by attempting to file a forged instrument because, as a
matter of law, the writing he was charged with and admitted forging, a death certificate,
is not an instrument within the meaning of section 115.” (Id. at p. 784.)
In People v. Jerome (1984) 160 Cal. App. 3d 1087, the defendant entered a
negotiated plea of guilty to charges of oral copulation of a minor under age 14 in
violation of section 288a, subdivision (c). (People v. Jerome, supra, at p. 1093.) On
appeal, the Attorney General conceded the victim was actually 15 years old at the time of
the crime and not 14 as required by the statute (ibid.), meaning the defendant could not
16.
have been guilty of oral copulation of a minor under the age of 14; it was legally
impossible.
“The elements of the completed crime [of criminal threat] are: (1)
The defendant willfully threatened to commit a crime that will result in
death or great bodily injury to another person. (2) The defendant had the
specific intent that the statement be taken as a threat. (3) The threat was on
its face and under the circumstances ‘“so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution of the threat.”’ (4) The
threat caused the victim ‘“to be in sustained fear for his or her own safety or
for his or her immediate family’s safety.”’ (5) The victim’s fear was
reasonable under the circumstances.” (People v Jackson (2009) 178
Cal. App. 4th 590, 596.)
By his plea, defendant admitted (1) willfully threatening to commit a crime against Hall
that would result in great bodily injury or death, (2) he had the specific intent to do so, (3)
the threat was unequivocal, immediate and specific, and (4) it caused Hall to be in
sustained, reasonable, fear for her safety. None of aforementioned elements require a
follow through of the threat. Said another way, whether defendant could have carried
through with his threat because, procedurally speaking, it could not have happened as he
threatened, does not amount to a legal impossibility.
Defendant contends it is “legally impossible for a person to have ‘knowledge’ of
something nonexistent.” He claims the “knowledge the crime he is threatening will result
in death or great bodily injury” is missing as a matter of law because he “threatened to
commit a crime against [the victim] that was legally impossible because it was based on a
contingency that could never happen.” However, the record on appeal does not support
his premise.
Although the docket report associated with case No. F11904321 in an entry dated
January 26, 2012, reads: “Tentative Jury Trial date of 01/30/2012 is vacated,” it is
significant the reporter’s transcript for the change of plea proceedings does not reflect the
court vacated that January 30th trial date in defendant’s presence. It is silent on the issue.
The only date mentioned in the reporter’s transcript from that proceeding is the date
selected for sentencing: February 16, 2012. From this record, it can be inferred
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defendant was not aware the January 30 court proceedings in F11904321 had been
vacated and was thus operating under the assumption Hall could still be testifying against
him in some manner on that date. Thus, the record does not support defendant’s
argument he had knowledge his actions fell outside the statute.
Further, defendant asserts his threat “could not possibly come to pass due to the
self-negating condition” of the threat—that it “could not have come to pass because
Kimberly couldn’t have testified against him on January 30,” and it “could never have
caused death or great bodily injury, because it could not have been carried out.”
Therefore, the willfulness element did not exist “due to the impossibility of the allegedly
threatened crime from a self-negating condition.”
A threat is to be viewed under the surrounding circumstances under which it was
made. (People v. Butler (2000) 85 Cal. App. 4th 745, 753; People v. Martinez (1997) 53
Cal. App. 4th 1212, 1218.) Here, defendant’s threats to beat Hall and to burn down her
residence if she testified against him were accompanied by defendant’s physical presence
outside the entrance to her apartment and his profane tirade. Those threats were made
after defendant’s previous and similar threats directed toward Hall and after she had
already testified at a preliminary hearing about those previous threats. Again, we note the
reporter’s transcript in case F11904321 pertaining to the change of plea does not
reference the January 30, 2012, proceeding. Moreover, we agree with the People that
willfulness by defendant can be inferred from his words, for it seems he, like Hall,
believed her testimony would be taken on January 30; defendant told the victim she
“needed to ‘watch her back’ and if she testified against him on January 30, 2012, that he
would ‘kick her ass.’ Then, the defendant told the victim he would ‘burn the place
down,’ referring to her apartment.”
Significantly, the criminal threat statute does not concentrate on the precise words
of the threat. It focuses on the effect on the victim. (People v. Stanfield (1995) 32
Cal. App. 4th 1152, 1158.) The communication of the threat and the prospect of its
execution “are as surely conveyed to a victim when the threatened harm is conditioned on
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an occurrence guaranteed to happen as when the threat is absolutely unconditional.”
(Ibid.) Hence, whether the threat was conditioned upon a future court appearance
referenced by defendant at that time is not the proper focus. Rather, the focus is on Hall.
As previously noted, there is no evidence Hall was aware her testimony would not be
required on January 30, 2012, in case No. F11904321. In fact, there is evidence to the
contrary. The probation report reflects Hall “contacted police and advised them that she
was in the process of testifying against the defendant regarding another criminal threat
case. She had already testified at the Preliminary Hearing, and she was scheduled to
testify on January 30, 2012.” Hence, the legal impossibility, as argued by defendant, was
certainly not known to Hall, the victim and focus of defendant’s crime.
Defendant’s admission to making criminal threats against Hall, including a threat
to beat her and burn down her home if she were to testify against him on January 30,
2012, is readily distinguishable from the admission at issue in Soriano. Legal
impossibility involves a situation wherein “no assailant could commit the crime charged.”
(People v. Jerome, supra, 160 Cal.App.3d at p. 1093.) In Soriano, no defendant could
commit the crime of forgery by attempting to file a death certificate because a death
certificate is not an instrument for purposes of section 115. (People v. Soriano, supra, 4
Cal.App.4th at p. 784.) Unlike Soriano, this case does not involve a situation wherein no
defendant could commit the crime charged. Rather, the crime of making a criminal threat
could be committed by a defendant willfully threatening to commit a crime resulting in
death or injury, with the specific intent the statement be taken as a threat, which on its
face conveyed a gravity of purpose and immediate prospect of execution, causing the
victim to be in reasonable, sustained fear for her safety.
In conclusion, we find defendant did not plead to a legal impossibility, therefore,
reversal is not warranted.
IV. The Adequacy of the Factual Basis
Related to the previous argument, defendant maintains this matter should be
remanded because the stipulated factual basis of the plea “offers nothing as a factual basis
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that (i) recipient of the alleged threat was placed in sustained fear, and (ii) even if she had
been, that any such sustained fear was reasonable.” The People contend the factual basis
inquiry was adequate.
Recently, in People v. Palmer (2013) 58 Cal. 4th 110, the Supreme Court
explained:
“When a trial court takes a conditional plea of guilty or nolo contendere
(hereafter no contest) to an accusatory pleading charging a felony, under …
section 1192.5 it must ‘cause an inquiry to be made of the defendant to
satisfy itself that the plea is freely and voluntarily made, and that there is a
factual basis for the plea.’ ‘“The purpose of the requirement,”’ we have
said, ‘“is to protect against the situation where the defendant, although he
realizes what he has done, is not sufficiently skilled in law to recognize that
his acts do not constitute the offense with which he is charged.”’ (People v.
French (2008) 43 Cal. 4th 36, 50.) In People v. Holmes (2004) 32 Cal. 4th
432 (Holmes), we held the trial court can satisfy this requirement by
inquiring of defense counsel regarding the factual basis of the plea, in
which case, we said, ‘it should request that defense counsel stipulate to a
particular document that provides an adequate factual basis, such as a
complaint, police report, preliminary hearing transcript, probation report,
grand jury transcript, or written plea agreement.’ (Id. at p. 436, citing
People v. Wilkerson (1992) 6 Cal. App. 4th 1571, 1576–1579.) We did not
need to address in Holmes, and expressly left open, the question whether
section 1192.5 is satisfied when counsel stipulates to a factual basis for the
plea without referring to a particular document that provides an adequate
factual basis. (Holmes, supra, at p. 441, fn. 8.)” (People v. Palmer, supra,
58 Cal.4th at pp. 112–113, fn. omitted.)
Palmer provided an opportunity for the Supreme Court “to answer the question left open
in Holmes, supra, 32 Cal. 4th 432: whether [defense] counsel’s bare stipulation, without
reference to any document describing the underlying facts, sufficiently establishes a
factual basis for the plea.” (People v. Palmer, supra, 58 Cal.4th at p. 114.) The court’s
conclusion was that “a bare stipulation without reference to any document describing the
facts may, in an appropriate case, satisfy the requirements of section 1192.5.” (Ibid.)
The court explained the defendant “acknowledged in the plea colloquy that he had
discussed the elements of the crime and any defenses with his counsel and was satisfied
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with her advice”; therefore “the trial court did not abuse its discretion in finding a factual
basis for defendant’s no contest plea based on counsel’s stipulation.” (Ibid.)
The Palmer court further explained:
“‘[A] trial court possesses wide discretion in determining whether a
sufficient factual basis exists for a guilty plea. The trial court’s acceptance
of the guilty plea, after pursuing an inquiry to satisfy itself that there is a
factual basis for the plea, will be reversed only for abuse of discretion.’
[Citation.] We see several reasons to accord trial courts flexibility in
establishing a factual basis for the plea, without undermining the primary
goal of assuring that the defendant entered the plea voluntarily and
intelligently. A defendant may be factually guilty but still hesitate to
stipulate to the truth of an entire document like a police report that contains
details he or she either disputes or simply does not want to admit. If there
is no stipulated sentence, counsel may fear the police reports will
demonstrate the existence of aggravating factors that could cause the court
to impose a higher sentence, or to reject the plea bargain altogether. In
sensitive cases involving intrafamilial violence and abuse, a defendant may
wish to avoid having confidential information about the victim become part
of the public record in the case. Although, as defendant notes, a factual
basis does not require recitation of detailed and damaging facts concerning
the crime, and counsel may place on the record only facts that support a
prima facie case [citation], a rule limiting trial courts’ discretion to accept
conditional pleas predicated on stipulations by counsel would raise
potential concerns for the defense function. In particular, defense counsel
may advise acceptance of a plea agreement based in part on admissions the
client has made or on other defense investigation, and may rely on such
admissions or investigation in stipulating to the factual basis for a plea. We
will not read into section 1192.5 a requirement that counsel explicitly refer
to those privileged sources as the basis for the stipulation.” (People v.
Palmer, supra, 58 Cal.4th at pp. 118-119.)
In this case, the trial court performed its obligation to satisfy itself defendant’s
plea was freely and voluntarily made, as evidenced by the following:
“THE COURT: Do you see this brown—or tan change of plea waiver
of rights form I’m holding in my left hand?
“THE DEFENDANT: Yes.
“THE COURT: Did you sign and initial this form?
“THE DEFENDANT: Yes.
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“THE COURT: Did your lawyer go over the form with you?
“THE DEFENDANT: Yes.
“THE COURT: Do you believe you understand the contents of this
form?
“THE DEFENDANT: Yes.
“THE COURT: [Defense counsel], are you satisfied your client
understands the nature and terms of this plea agreement or indicated by the
Court as well as the rights that he is giving up to enter this plea?
“[DEFENSE COUNSEL]: Yes.”
It can be reasonably inferred from this exchange that defense counsel discussed with
defendant the elements of the crime to which he pled no contest, as well as any defenses
he may have had thereto. Therefore, defendant’s assertion that “nothing in this record
states” his attorney “discussed the elements of the crime and any defenses with him” is
misguided.
Thereafter, the court elicited defendant’s waiver of his rights (1) to a jury trial or
court trial, (2) to confront witnesses against him, (3) to present evidence in his behalf, (4)
to remain silent, and (5) to a preliminary hearing. A short time later, defendant stated he
understood he was admitting a violation of section “422 mainly referred to as criminal
threats.” Before accepting defendant’s plea, the court inquired of defendant:
“THE COURT: Do you have any questions you want to ask [defense
counsel] privately? That’s the young lady standing next to your lawyer—or
the Court on the record before I start taking your pleas. Do you want a
moment to speak to her about something?
“THE DEFENDANT: Yeah.
“THE COURT: I’ll give you a moment. The record will reflect
[defendant] is speaking [with defense counsel] off the record. Have you
had enough time to discuss this with your attorney?
“THE DEFENDANT: Yes.
“THE COURT: Are you ready to proceed?
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“THE DEFENDANT: Yes.
“THE COURT: To the allegation in Count 1 of the Complaint … on
or about January 28 of this year 2012 you committed felony violation of …
Section 422 commonly referred to as criminal threats. The allegation is
that on or about that date you did willfully and unlawfully threaten to
commit a crime which crime would result in death or great bodily injury to
one Kimberly Ann Hall. The allegation is that when you made that
threat—that specific intent that the statement be taken as a threat. It’s
further alleged that the threat on its face and under the circumstances under
which it was made was so unequivocal, unconditional and immediate and
specific so as to convey to Ms. Hall a gravity of purpose and immediate
prospect of execution. In other words, that it would be done immediately.
It is further alleged that Ms. Hall was reasonably in sustained fear for her
safety or the safety of her immediate family. Do you understand this
allegation in Count 1? This is a felony and a strike ….
“THE DEFENDANT: Yes.
“THE COURT: How do you plea to Count 1? Guilty? Not guilty?
Or no contest?
“THE DEFENDANT: No contest.” (Italics added.)
Thereafter, both parties “join[ed] in the waivers and concur[red] and stipulate[d] to
factual basis on the plea based on exchange of police reports with the DA’s Office.” Like
the defendant in Palmer, at no time during these proceedings did defendant protest his
factual innocence.
Here, also like Palmer, both counsel, as officers of the court, stipulated to the
factual basis of the plea, specifically identifying the police report as providing that basis.
Our record does not include the police report. Rather, the record only includes reference
to the police report by way of the probation report.5 We do agree the probation report’s
5The probation report provides as follows from the police report:
“On January 28, 2012, at approximately 3:20 p.m., Kimberly H. (age 34) was walking to
Eldorado Park to pick up her child who was playing at the park. When she approached the
mailbox area of her apartment complex, she saw the defendant standing there. As she walked
past the defendant, he yelled profanities at her. He yelled something regarding going to court.
The victim ignored the defendant and continued walking to get her child.
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reference to the police report does not address facts directly relating to the victim’s fear.
Nevertheless, the probation report does indicate that in response to defendant’s actions on
January 28, 2012, Hall “contacted police and advised them that she was in the process of
testifying against the defendant in another criminal threat case … and she was scheduled
to testify on January 30, 2012.”
Defendant argues that although the record does not contain the police report,
because the probation report is a part of the record and it references the police report,
which fails to address the victim’s fear, the factual basis is inadequate. A probation
report is required to include information concerning the circumstances of defendant’s
crime (§ 1203). But the statute does not require the report to identify all facts or
statements corresponding to the elements of a defendant’s crime. Similarly, the
California Rules of Court require a probation report to include “information concerning
the victim,” however, a “victim’s statement or a summary thereof” is required “if
available.” (Cal. Rules of Court, rule 4.411.5(a)(5)(A), italics added; see also 3 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Punishment, § 631, p. 1029 [“The report may
include a statement of the victim’s comments concerning the offense”].)
We conclude the adequacy of the factual basis for defendant’s plea is sufficient.
Defendant affirmed he had discussed the case with his attorney and was afforded another
“When she returned, she observed the defendant standing in front of her apartment door.
The defendant again yelled profanities toward the victim. He told the victim she needed to
‘watch her back’ and if she testified against him on January 30, 2012, that he would ‘kick her
ass.’ Then, the defendant told the victim he would ‘burn the place down,’ referring to her
apartment. The defendant continued to yell profanities at the victim and left the area.
“The victim contacted police and advised them that she was in the process of testifying
against the defendant regarding another criminal threat case. She had already testified at the
Preliminary Hearing, and she was scheduled to testify on January 30, 2012.
“A witness told officers that he was inside of the residence when he heard yelling. As he
exited the apartment, he observed the defendant yelling at the victim. He heard the defendant
threaten the victim and tell her he was going to ‘kick her ass.’ Then, he heard the defendant tell
the victim not to testify in court. If she did, he would ‘kick her ass’ and burn down her
apartment. The defendant was yelling profanities at him and the victim before leaving the
location.”
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opportunity to speak with her during the change of plea hearing. Also, as officers of the
court, both counsel stipulated there existed a factual basis for the defendant’s plea to the
crime of making a criminal threat. That factual basis was identified as the police report.
There is no evidence on this record that the police report was inadequate. Considering all
of the foregoing, we find the trial court acted within its discretion in accepting
defendant’s plea.
V. The Validity of the Plea
Finally, defendant argues his plea to count 1 was not knowing, voluntary, or
intelligent because he pled to a legal impossibility, the factual basis was inadequate, the
dismissal of count 2 was an illusory consideration, and the trial court’s recitation of the
charge may have been difficult to understand and incomprehensible to an individual with
similar disabilities.
“[A] plea is valid if the record affirmatively shows that it is voluntary and
intelligent under the totality of the circumstances.” (People v. Howard (1992) 1 Cal. 4th
1132, 1175.) “[I]t was well established that a valid guilty plea presupposed a voluntary
and intelligent waiver of the defendant’s constitutional trial rights, which include the
privilege against self-incrimination, the right to trial by jury, and the right to confront
one’s accusers.” (Id. at p. 1175.) “‘[T]he record must affirmatively disclose that a
defendant who pleaded guilty entered his plea understandingly and voluntarily.’
[Citation.]” (Howard, at p. 1177.) “The record must affirmatively demonstrate that the
plea was voluntary and intelligent under the totality of the circumstances.” (Id. at p.
1178.) “[E]xplicit admonitions and waivers still serve the purpose that originally led us
to require them: They are the only realistic means of assuring that the judge leaves a
record adequate for review.” (People v. Howard, supra, at pp. 1178–1179.)
A plea is involuntary when induced by threats, misrepresentation, or improper
promises. (Brady v. United States (1970) 397 U.S. 742, 755.) “A plea may be
involuntary either because the accused does not understand the nature of the
constitutional protections that he is waiving [citation], or because he has such an
25.
incomplete understanding of the charge that his plea cannot stand as an intelligent
admission of guilt. Without adequate notice of the nature of the charge against him, or
proof that he in fact understood the charge, the plea cannot be voluntary in this latter
sense. [Citation.]” (Henderson v. Morgan (1976) 426 U.S. 637, 645, fn. 13.)
A no contest plea not made knowingly or intelligently is involuntary and has been
obtained in violation of due process and cannot form the basis of a criminal conviction.
(U.S. Const., 5th & 14th Amends.; Henderson v. Morgan, supra, 426 U.S. at pp. 644-
645; McCarthy v. United States (1969) 394 U.S. 459, 466.) However, a defendant cannot
attack his (no contest) plea merely because he “made what turned out, in retrospect, to be
a poor deal.” (Bradshaw v. Stumpf (2005) 545 U.S. 175, 186.)
Here, the record affirmatively demonstrates defendant knowingly and voluntarily
agreed to plead no contest, and in doing so waived his rights to a jury trial, to confront his
accusers, and to not incriminate himself. First, defendant executed the felony plea form,
which set forth each of these rights, and in which he agreed that he understood its terms,
had discussed them with his attorney, and voluntarily waived them. Second, defendant’s
attorney signed the same form indicating she was satisfied defendant understood these
rights, had an opportunity to discuss them with her, and he understood the consequences
of the plea. Third, at the plea hearing the trial court judge engaged in an oral inquiry as
to whether defendant was pleading no contest and waiving his constitutional rights
voluntarily and intelligently. Fourth, at the conclusion of this inquiry, the court accepted
defendant’s plea and found it was “freely and voluntarily entered” and that defendant had
“knowingly, intelligently and expressly waived his statutory and Constitutional rights.”
We have already determined defendant did not plead to a legal impossibility, nor
was the factual basis for that plea inadequate. We have also determined defendant did
not overcome the presumption of competence by proving a developmental disability.
These findings also mean the dismissal of count 2 in exchange for defendant’s no contest
plea in count 1 was not an illusory consideration.
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To conclude, we have considered the applicable law, the transcript of the plea
colloquy, and the record. In doing so, we find defendant’s no contest plea to be
voluntary, knowing, and intelligent.
DISPOSITION
The judgment is affirmed.
__________________________
PEÑA, J.
WE CONCUR:
________________________________
POOCHIGIAN, Acting P.J.
________________________________
DETJEN, J.
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