People v. Tran CA3

Filed 5/5/16 P. v. Tran CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C070706
v. (Super. Ct. No. 94F10752)
RICKY VAN TRAN,
Defendant and Appellant.
A jury found defendant Ricky Van Tran guilty of two counts of first degree
murder and one count of attempted murder and found true the allegation that he
personally and intentionally used a firearm in the commission of murder. The trial court
sentenced defendant to two consecutive terms of life in prison without parole, plus a
determinate term of 20 years.
Defendant now contends (1) the trial court violated his rights to due process and
against self-incrimination when it permitted the prosecutor to question him about his
refusal to discuss his case during a jailhouse visit with a friend, and (2) the trial court
erred in admitting evidence relating to the arrest of defendant’s brother in 1994.
1
Even if the prosecutor’s inquiry about defendant’s silence was error under Doyle
v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91] (Doyle), we conclude any such error was
harmless beyond a reasonable doubt. In addition, the trial court did not abuse its
discretion in admitting the evidence concerning the arrest of defendant’s brother because
a jury could reasonably find from the prosecutor’s offer of proof that it was more likely
than not true that defendant learned of his brother’s arrest in 1994. We do not consider
the remainder of defendant’s appellate claims with regard to his brother’s arrest because
defendant did not raise those claims in the trial court. (Evid. Code, § 353; People v.
Cowan (2010) 50 Cal.4th 401, 476-477 (Cowan); People v. Partida (2005) 37 Cal.4th
428, 434-435 (Partida).)
We will affirm the judgment.
BACKGROUND
There was a shooting at Craven Club between 11:30 p.m. and midnight on
October 25, 1991. Quon Tran (aka Cujo) and Huy Nguyen (aka Joey) died of gunshot
wounds.1 Long Nguyen was shot in the leg or ankle. Police located a .38 or .357 caliber
damaged bullet at the scene.
Police interviewed witnesses to the shooting within hours or days of the shooting.
Tuan Phan (aka Bobby) and Hoang Nguyen (aka Spud) identified defendant as the
shooter from a photographic lineup and believed defendant was an Oriental Boys (O.B.)
gang member. Bobby and Spud identified the suspect vehicle as a blue Oldsmobile.
Bobby saw defendant pull out a .38 or .357 revolver. Spud said the shooter’s name was
Ricky.
Thoai Van Bui and his brother Tuan told police that they heard gunshots coming
from a blue, two-door Oldsmobile. Tuan saw a hand go back inside the front window of
1 We will refer to individuals by their nicknames or first names for clarity.
2
the Oldsmobile. He reported that the front passenger of the Oldsmobile was a young
Asian male with a long ponytail.
Hang Nguyen (aka Jake) told police he saw defendant at Tudo Pool Hall (Tudo)
on the night of the shooting. Tudo was one to one and a half miles from Craven Club.
Jake said defendant may have left Tudo with his brother before 10:00 or 10:30 p.m. and
defendant’s brother was driving a blue, two-door Oldsmobile. Jake told police defendant
said he was going to Craven Club to “check out a party.” According to Jake, defendant
said someone at the party tried to hit defendant, and defendant left the party and returned
to the pool hall. Jake said he did not see defendant with a gun on the night of the
shooting, but defendant told Jake the day before the shooting that defendant had a .38.
Police determined that defendant’s mother owned a 1983 Oldsmobile Cutlass.
The car was freshly painted a dark color when a Livermore police officer stopped it
10 days after the Craven Club shooting.
A warrant issued for defendant’s arrest. A nationwide manhunt ensued but law
enforcement officials could not locate defendant.
Almost two decades later, on January 20, 2010, defendant was arrested in
Cheltenham, Pennsylvania. Defendant told police his name was Thieu Tran. Thieu is
defendant’s younger brother. Law enforcement officials later determined defendant’s
true identity using his fingerprints.
Bobby testified at defendant’s trial. He was at Craven Club with Spud, Long, and
Cujo on October 25, 1991. According to Bobby, Long, Spud, and Bobby were members
or associates of the Nip Boys gang. The Nip Boys and the O.B. were rival Asian gangs.
Bobby recalled that a group of people including Long, Cujo, Bobby, and Spud
went outside Craven Club at about 10:30 p.m. Bobby noticed a light blue or grey, two-
door Oldsmobile Cutlass approaching slowly, with the headlights off. Bobby saw
defendant in the Oldsmobile when the car was about 10 feet from Bobby. Bobby knew
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defendant.2 Defendant wore his long hair in a ponytail. Bobby turned to Spud and said
“is O.B.s” because Spud had a fight with defendant the prior week. Bobby saw defendant
lean out the passenger’s side window of the Oldsmobile and point a .38 or .357 revolver.
Bobby heard four or more loud gunshots and yelled defendant’s first name after the
gunshots were fired. Phat Duc Lam (aka Patrick) and Man Tran (Cujo’s brother) testified
that they heard Bobby call out defendant’s name after the shooting. Bobby told the jury
he had no doubt defendant was the shooter.
Spud’s trial testimony was generally consistent with that of Bobby. Spud said he
was outside Craven Club with Bobby when he saw two cars drive by slowly. The first
car was dark in color and could have been a two-door Oldsmobile. The second car was
white in color. Spud saw the person in the front passenger seat of the dark colored car
pull out a gun and shoot. The shooter had long hair which was tied back. Spud
recognized the shooter because he had seen that person on a couple of prior occasions.
Tuan Bui told the jury he saw a hand going back into the front passenger side of a
light colored Oldsmobile after he heard gunshots. He said the front passenger of the
Oldsmobile had a ponytail.
Jake testified he and defendant were O.B. gang members. Jake said he rode in a
light blue Oldsmobile Cutlass that belonged to defendant’s family with defendant’s
brother Thieu on the night of the shooting. They went to Tudo where Jake saw defendant
playing an arcade game. Defendant told Jake he was going to Craven Club to “check
something out.” Jake saw defendant again at the pool hall at about 9:15 or 9:30 p.m.
Defendant told Jake he had been at Craven Club and someone tried to hit him. Defendant
left Tudo at about 10:00 or 10:30 p.m. and Thieu might have left with defendant.
Contrary to his statement to police, Jake testified that he had never seen defendant with a
2 Defendant similarly testified that Bobby knew defendant and what defendant looked
like.
4
gun. However, Jake said defendant told him, sometime before the shooting, that
defendant had a .38 caliber gun and kept it in the car.
Defendant testified at his trial, stating he did not remember what he did on
October 25, 1991. But he went to Craven Club sometime in late October 1991 to look for
his younger brother because his younger brother took their mother’s car without
permission. Defendant got a ride to Craven Club from someone whose identity he could
not recall at the trial.
Defendant saw people, including Bobby, standing outside Craven Club. He knew
Bobby and Spud were Nip Boys gang members. Someone defendant associated with
Bobby said to defendant, “what the hell are you looking at” or something to that effect.
Defendant returned to Tudo at 8:00 or 8:30 p.m. and took his brother home. Defendant
denied shooting anyone.
Defendant heard about the shooting at Craven Club and learned that the police
were looking for him in relation to the shooting. He was scared because he had heard the
police tortured people to get false confessions. He thought no one would believe him
because he was a gangster. As a result, he fled Sacramento in his mother’s car. He gave
police a false name when they pulled him over in Livermore on November 4, 1991,
because he knew he was wanted for murder. He fled California and lived in Philadelphia
under a false name until his arrest in January 2010. Defendant admitted he gave police
his brother’s name when he was arrested in 2010.
Defendant denied telling Jake he had a .38 caliber gun and said he did not have a
ponytail in October 1991.
Defendant asserted the defense of mistaken identity. His trial counsel theorized
that the shots could have come from either car described by the witnesses. Defense
counsel noted that witnesses saw flashes coming from a white car and Thang Bui, a Nip
Boys gang member, was in the white car. He said there was another Nip Boys gang
5
member in the blue car. Defense counsel argued the shooters saw their fellow Nip Boys
gang member Long under attack outside Craven Club and started shooting.
A jury found defendant guilty of the first degree murders of Cujo and Joey and the
attempted murder of Long. The jury found true the allegations that defendant personally
and intentionally used a firearm in the commission of murders and the attempted murder,
and that defendant committed multiple murders. The trial court sentenced defendant to
two consecutive terms of life in prison without the possibility of parole, plus a
determinate term of 20 years.
DISCUSSION
I
Defendant argues the trial court violated his rights to due process and against self-
incrimination when it permitted the prosecutor to question him about his refusal to
discuss his case with his friend Jake during a jailhouse visit. Defendant says he invoked
his right against self-incrimination when he told Jake he did not want to talk about his
case. According to defendant, the prosecutor committed Doyle error by asking defendant
why he would not discuss his case with Jake if he was innocent. Defendant says reversal
is required under Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].
The prosecutor asked defendant during cross-examination whether he had contact
with Jake before his 2010 arrest. The question followed a series of questions about
whether defendant ever talked to his brother Thieu and his wife Daisy about what
happened in 1991. Defendant replied that he might have had contact with Jake before his
arrest. Defendant testified that Jake visited him in jail in 2010 when the prosecutor asked
when defendant last spoke with Jake. Defendant could not remember what he and Jake
talked about during the jailhouse visit. The prosecutor then asked whether there was any
reason defendant did not want to talk openly with Jake about the case. Defendant
answered that he knew he could not discuss his case because everything was being
recorded. The prosecutor followed up, “Why do you care if you discuss the case if the
6
phone call is recorded? Why does it matter?” Defense counsel objected to the questions
and asked to approach the bench. An unreported conference between counsel and the
trial judge followed. The prosecutor then continued asking questions about the jailhouse
visit. The prosecutor asked why defendant was reluctant to talk openly with Jake about
what happened in 1991. Defendant responded that he knew he was not supposed to say
anything over the phone. Defendant responded “I don’t know” when the prosecutor
asked if defendant was concerned about talking with Jake about what happened in 1991.
The Attorney General argues defendant forfeited his claim of Doyle error by
failing to object in the trial court. Failure to object at the trial can result in forfeiture.
(People v. Hughes (2002) 27 Cal.4th 287, 332.) Here, however, the record shows
defendant’s trial counsel objected to the prosecutor’s question about why defendant
would not discuss his case with Jake. Although the record does not show the basis for
counsel’s objection and we cannot confirm it was based on Doyle, we will assume
defendant preserved his claim of Doyle error for review and consider the merits of the
claim. (People v. Champion (1995) 9 Cal.4th 879, 908, fn. 6.)
“ ‘In Doyle, the United States Supreme Court held that it was a violation of due
process and fundamental fairness to use a defendant’s postarrest silence following
Miranda warnings to impeach the defendant’s trial testimony. [Citation.]’ ” (People v.
Hajek and Vo (2014) 58 Cal.4th 1144, 1212.) The Attorney General points out that
nothing in the record shows defendant received Miranda warnings or invoked his right to
remain silent. We agree there is no evidence in the record that defendant was advised of
his Miranda rights.3 Doyle is not implicated by the use of pre-Miranda silence.
3 Defendant filed a motion to augment the record on appeal to include a transcript of
Detective Keller’s February 3, 2010 interview with defendant or, in the alternative, to
direct the trial court to hold record settlement proceedings. “The rules authorizing
settlement, augmentation, and correction of the record on appeal concern documents
‘file[d] or lodged’ in the superior court and transcripts of ‘oral proceedings’ that occurred
7
(Fletcher v. Weir (1982) 455 U.S. 603, 607 [71 L.Ed.2d 490, 494]; Jenkins v. Anderson
(1980) 447 U.S. 231, 238-239 [65 L.Ed.2d 86, 95-96].)
But even assuming that the prosecutor’s inquiry about defendant’s silence violated
Doyle, we conclude beyond a reasonable doubt that any such Doyle error did not
contribute to the verdict. “ ‘ “When deciding whether a prosecutor’s reference to a
defendant’s post-arrest silence was prejudicial, this court will consider the extent of
comments made by the witness, whether an inference of guilt from silence was stressed
to the jury, and the extent of other evidence suggesting defendant’s guilt.” [Citation.]’ ”
(People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1559 (Hollinquest).) We will not
reverse the judgment for Doyle error if we conclude, based on the record as a whole and
beyond a reasonable doubt, that the Doyle error was harmless. (Id. at p. 1558; People v.
Galloway (1979) 100 Cal.App.3d 551, 559-560 (Galloway).)
Defendant’s testimony about his jailhouse conversation with Jake was brief, taking
up about five pages of over 100 pages of defendant’s trial testimony in the reporter’s
transcript. Moreover, the prosecutor did not mention defendant’s testimony about his
jailhouse conversation with Jake during his closing and rebuttal statements to the jury.
Unlike the prosecutors in Hollinquest and Galloway, the prosecutor in this case did not
argue to the jury that defendant’s silence evinced a consciousness of guilt. (Hollinquest,
supra, 190 Cal.App.4th at p. 1558; Galloway, supra, 100 Cal.App.3d at p. 560.)
therein. [Citation.] These provisions -- much like the entire network of rules governing
matter properly included in the appellate record -- are intended to ensure that the record
transmitted to the reviewing court preserves and conforms to the proceedings actually
undertaken in the trial court. [Citations.] The settlement, augmentation, and correction
process does not allow parties to create proceedings, make records, or litigate issues
which they neglected to pursue earlier.” (People v. Tuilaepa (1992) 4 Cal.4th 569, 585.)
We deny the unopposed motion because the supporting declaration does not indicate that
the transcript of the February 3, 2010 interview was presented in the superior court.
(Cal. Rules of Court, rule 8.155; Vons Companies, Inc. v. Seabest Foods, Inc. (1996)
14 Cal.4th 434, 444, fn. 3; Tuilaepa, supra, 4 Cal.4th at p. 585.) In any event, as we will
explain, any Doyle error was harmless in this case.
8
In addition, the evidence of defendant’s guilt is strong. Bobby yelled out
defendant’s name right after the shooting. Bobby knew defendant. Man Tran and Patrick
heard Bobby call out defendant’s name. Man told a police officer who responded to the
scene that Bobby saw the shooter. Bobby’s spontaneous and immediate identification of
the shooter is compelling evidence.
Bobby and Spud focused their attention on the car within which they saw the
shooter. Spud told police he was standing next to Bobby, Bobby asked Spud if Spud
knew the person in an approaching car, and Spud recognized that person as defendant.
Bobby told police he and Spud recognized the front-seat passenger as an O.B. gang
member. Bobby’s trial testimony was consistent with his and Spud’s reports to police in
October 1991. Bobby testified that he saw defendant in the Oldsmobile. He knew
defendant was an O.B. gang member. And he told Spud “is O.B.s” as a warning because
he knew Spud, a member of the rival Nip Boys gang, had a fight with defendant the prior
week. On the other hand, there is no evidentiary support for the defense theory that a Nip
Boys gang member in the blue Oldsmobile shot at the crowd because he saw his fellow
Nip Boys gang member Long in a fight.
Bobby and Spud told police the shooter’s name was Ricky. Although Bobby did
not initially tell police that he recognized the shooter because he was worried about being
labeled a snitch, Bobby identified defendant as the shooter within a few days after the
shooting. Spud also identified defendant as the shooter in October 1991. Bobby told the
jury he had no doubt defendant was the shooter.
Bobby reported seeing defendant pull out a .38 or .357 caliber revolver. Police
located a .38 or .357 damaged bullet at the scene of the shooting. And defendant told
Jake he had a .38 caliber gun.
Defendant’s family owned a light blue Oldsmobile Cutlass which matched the
description of the suspect vehicle provided by multiple eyewitnesses. Bobby told police
the shooter was in a light blue or grey Oldsmobile Cutlass. Spud said the shooter was in
9
a blue Oldsmobile or Buick Regal. Thoai reported that he saw a dark blue Oldsmobile or
Monte Carlo driving around in the parking lot before the shooting, and he heard gunshots
coming from that car. Tuan told police he heard gunshots coming from the front of a
light blue Oldsmobile and saw a hand go back inside the front window of the Oldsmobile
after the shooting. Tuan also reported that the front passenger of the Oldsmobile had a
long ponytail, which matched the description of defendant’s 1991 hairstyle given by Jake
and Detective Fong. Bobby, Spud, Tuan, and Thoai also saw a white car driving in the
parking lot, but they did not connect the shooting with the white car.
Some witnesses associated the gunshots with a white car. Luong Dinh and Thang
Bui were in a white Celica which was behind a blue car that had stopped in front of
Craven Club before the shooting. But no one identified Luong or Thang as a shooter.
The trial court instructed the jury to decide what evidence, if any, to believe if it
determined there was a conflict in the evidence. The trial court also described factors the
jury could consider in evaluating a witness’s testimony, including how well the witness
could see during the incident. It is clear the jury credited the testimony which associated
the gunshots with the blue car.
There was also evidence from which the jury could find that the shooting was
gang motivated. Defendant admitted he was an O.B. gang member and that Bobby and
Spud were members of the rival Nip Boys gang. Defendant testified he saw Bobby
outside Craven Club in late October when he went to the club to look for Thieu; he said
someone associated with Bobby challenged defendant. Bobby testified that Spud had a
fight with defendant the week before the Craven Club shooting. Detective Fong testified
there was a shooting at Tudo, an O.B. hangout, some months before the Craven Club
shooting, and there had been incidents involving O.B. and Nip Boys gang members at
Craven Club prior to the October 25, 1991 shooting. The gang evidence supported the
jury’s finding that defendant was the shooter.
10
Further, there was undisputed evidence of consciousness of guilt apart from
defendant’s silence during the jailhouse conversation with Jake. Defendant fled in the
Oldsmobile after he learned he was wanted for the Craven Club shooting. The
Oldsmobile had been freshly painted in a different color. Defendant gave police a false
name when police stopped him in Livermore, and again when he was apprehended in
Pennsylvania. He changed his name and evaded police capture for about 18 years.
On this record, we do not agree with defendant’s claim that the prosecutor “tipped
the balance” on the question of defendant’s guilt by questioning him about his refusal to
discuss his case openly with Jake. The evidence of defendant’s silence during the
jailhouse conversation with Jake did not fill an evidentiary gap in the prosecution’s case
or touch a “ ‘live nerve in the . . . defense.’ ” (Galloway, supra, 100 Cal.App.3d at
p. 560.) Considering all of the evidence and the closing remarks by counsel and
assuming that the prosecutor committed Doyle error, any such error was harmless.
II
Defendant also asserts various challenges to the admission of evidence relating to
his brother’s arrest in 1994. The prosecution offered the challenged evidence to show
consciousness of guilt and “an active and continual pattern of flight.” Defendant argues
the trial court erred in admitting the evidence because the prosecution did not establish
the preliminary fact that defendant knew of his brother’s arrest.
Although all relevant evidence is admissible, “ ‘[s]ometimes the relevance of
evidence depends on the existence of a preliminary fact.’ ” (People v. Cottone (2013)
57 Cal.4th 269, 283.) If the relevance of proffered evidence depends on the existence of
a preliminary fact, the proponent of the proffered evidence must produce evidence as to
the existence of the preliminary fact. (Evid. Code, § 403.) The jury makes the final
determination on the question of whether the preliminary fact exists. (People v. Lucas
(1995) 12 Cal.4th 415, 466.) But the trial court determines whether the evidence of the
preliminary fact is sufficient to allow a reasonable jury to conclude that it is more
11
probable than not that the preliminary fact exists. (Ibid.; People v. Herrera (2000)
83 Cal.App.4th 46, 61.) The trial court excludes the proffered evidence under Evidence
Code section 403 only if it finds that the showing of the preliminary fact “ ‘ “is too weak
to support a favorable determination by the jury.” ’ ” (Cottone, supra, 57 Cal.4th at
pp. 283-284.) We review a trial court’s ruling on the sufficiency of the foundational
evidence for a preliminary fact under an abuse of discretion standard. (People v. Tafoya
(2007) 42 Cal.4th 147, 165; Lucas, supra, 12 Cal.4th at p. 466.) Under that standard, we
will not disturb the trial court’s ruling except on a showing that the trial court exercised
its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The prosecutor in this case offered to prove the following with regard to the arrest
of defendant’s brother Thieu. Thieu was arrested in Delaware in 1994 for the October
25, 1991 murders. Thieu told police his name was Ricky Tran. Defendant’s wife was
present during Thieu’s arrest. At that time, defendant and his wife lived one block from
Thieu. The trial court concluded the jury could reasonably infer that defendant learned of
his brother’s arrest in 1994 based on the presence of defendant’s wife during Thieu’s
arrest and the proximity of defendant’s residence to the location of Thieu’s arrest.
Defendant’s trial counsel argues there is no evidence that defendant knew of his
brother’s arrest and thus no preliminary fact to support the relevance of the challenged
evidence. But the trial court ruled the jury could infer knowledge based on the evidence
presented. Defendant challenges the sufficiency of that evidence on appeal, but he did
not assert such a challenge in the trial court. We do not consider claims raised for the
first time on appeal. (Cowan, supra, 50 Cal.4th at pp. 476-477; Partida, supra,37 Cal.4th at p. 434-435.) In any event, a jury could reasonably find from the
prosecutor’s offer of proof that it was more likely than not true that defendant learned of
Thieu’s arrest in 1994. Accordingly, the trial court did not abuse its discretion in
admitting the evidence concerning Thieu’s arrest. Although not a basis for our
12
conclusion, we observe that defendant testified he found out Thieu was arrested on a
warrant for the Sacramento murders but did not contact the police because defendant did
not want to turn himself in.
Defendant also challenges the admission of evidence of Thieu’s arrest on
relevance grounds. He says the evidence of Thieu’s arrest was irrelevant because it was
undisputed that defendant fled California and remained at large until 2010. This
argument is forfeited by defendant’s failure to raise it in the trial court. (Evid. Code,
§ 353; Cowan, supra, 50 Cal.4th at pp. 476-477; Partida, supra, 37 Cal.4th at p. 434-
435.) Defendant’s trial counsel stated in the trial court that defendant would not dispute
that defendant knew he was wanted for murder and fled California in 1991. But the
statement was made in the context of arguing that evidence relating to Thieu’s arrest was
unduly prejudicial. Defendant did not object to the evidence relating to Thieu’s arrest on
relevance grounds. He argued instead that whatever relevance existed was outweighed
by the danger of undue prejudice.
Defendant also argues on appeal that evidence of Thieu’s arrest was unduly
prejudicial because it permitted the prosecutor to introduce evidence of defendant’s bad
character. Again, defendant did not raise this argument in the trial court. Defendant
argued in the trial court that evidence of Thieu’s arrest was prejudicial because it
involved deceitful conduct by Thieu, not defendant, and because defendant will not
dispute that he knew he was wanted for murder and fled California in 1991. Defendant
did not preserve his appellate claim for review. In any case, this argument fails on the
merits. Even if were we to conclude that the trial court erred in admitting the challenged
evidence, any possible error would not require reversal of the judgment because
defendant has not shown it is reasonably probable he would have obtained a more
favorable result at trial in the absence of the error. (People v. Marks (2003) 31 Cal.4th
197, 226-227 [we review error in admitting evidence under ordinary rules of evidence
like Evidence Code section 352 under the reasonable probability standard of People v.
13
Watson (1956) 46 Cal.2d 818].) As we have explained, the evidence supporting the
conviction is strong. There was other evidence that defendant fled California and evaded
police capture for about 18 years. And defendant did not object to the other evidence
indicating his consciousness of guilt.
In addition, the trial court instructed the jury that evidence of flight cannot prove
guilt by itself. The jury was instructed on the prosecution’s burden of proof and the
required findings for murder, murder in the first degree, and attempted murder. The trial
court told the jury not to let bias or prejudice influence its decision and to decide the facts
based only on evidence presented in the courtroom. Upon defendant’s request, the trial
court also twice admonished the jury that it could not use evidence about Thieu’s deceit
against defendant. The trial court told the jury that evidence of Thieu’s arrest was
admitted for the limited purpose of establishing whether defendant knew he was wanted
for the 1991 homicides. The trial judge said whether defendant knew he was wanted for
those homicides was a question of fact for the jury to decide. We presume the jury
followed the trial court’s instructions. (People v. Avila (2006) 38 Cal.4th 491, 574.)
DISPOSITION
The judgment is affirmed.
/S/
Mauro, J.
We concur:
/S/
Blease, Acting P. J.
/S/
Hoch, J.
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