People v. Horton CA2/3

Filed 9/29/14 P. v. Horton CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B246874
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA125961)
v.
EDMUND HORTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Roger Ito, Judge. Affirmed.
Julie Schumer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant, Edmund Horton, appeals his conviction for violating the
California Sex Offender Registration Act (Pen. Code, § 290.011, subd. (b)).1 He was
sentenced to state prison for a term of four years.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal. 4th 1199, 1206), the evidence established the following.
Defendant Horton was a registered sex offender. State of California Parole Agent
Corin Perez began supervising him in November 2011. As part of the parole process,
Perez interviewed Horton and fitted his ankle with a global positioning system (GPS)
tracking device. Horton registered under the Sex Offender Registration Act as a transient
in January 2012.
Perez testified the registration policy defined a “transient” as a person who had no
residence, and that transients were required to register every 30 days and visit a parole
officer on a weekly basis. Regularly spending two or three nights a week at the same
place disqualified a registrant from being a transient; a determination as to whether a
particular location had become a residence was based on a totality of the circumstances.
By monitoring Horton’s movements with the GPS tracking system, Perez discovered he
had often been spending the night in Downey at the residence of his girlfriend, Antoinette
Easley. In February 2012, Perez advised Horton he had to register Easley’s residence
because he was spending so much time there. Horton responded by saying he was “not
doing anything wrong, I’m not hurting anybody.” He did not want to register Easley’s
residence because it would endanger her Section 8 housing benefits.
In March and April of 2012, Horton was still registering as a transient although he
continued to regularly stay with Easley. Perez had told Horton at the end of March she
“wasn’t happy about the fact that he was still registering as transient.” When Horton
again registered as a transient in April, Perez spoke to her supervisor. At a conference
1
All further references are to the Penal Code unless otherwise specified.
2
with Horton that month, his movements between November 2011 through April 2012
were reviewed. Perez expressed her concern about the amount of time Horton was
spending at Easley’s residence. She and her supervisor explained the registration policy
to Horton, who never indicated he did not understand the rules.
Nevertheless, Horton did not change his registration to a non-transient status
although he continued to stay at Easley’s residence, so Perez’s supervisor authorized a
parole violation arrest. While escorting Horton to jail, Perez indicated she was frustrated
with his continued failure to follow the rules. Horton got very upset: “[He] wasn’t
arguing the fact that I was taking him into custody. He was more arguing the fact that he
felt why did you not take me into custody a long time ago? It’s been happening. What,
you’re scared? Kind of saying that I was scared to take him into custody. [¶] And I
expressed to him that was not the case, I was hoping for a change in behavior, and I was
hoping that my efforts to redirect him would be successful, and unfortunately they were
not.”
However, Perez then decided to give Horton another chance to comply with his
parole conditions because she believed he was at least trying to make an effort. She
spoke to Horton and Easley about properly following the rules, and expressly warned
Easley she was jeopardizing her Section 8 housing. Easley promised “it won’t happen
anymore, I get it.” According to Perez, “[Horton] understood it, [Easley] understood it,
and we went forward.”
Thereafter, Horton tried to register as a transient in Compton. The attempt failed
because the GPS tracking information showed he had been spending so much time in
Downey. Horton then tried to register as a transient at the Downey Police Department,
but Perez had already informed officials there that he was not a transient. Perez alerted
Section 8 housing authorities to the situation because she wanted Easley to recognize
there was a problem; Perez was hoping Easley would refuse to let Horton stay with her.
But then on May 23, 2012, Perez told Horton to register at Easley’s residence so he
would be in compliance with the Act.
3
On June 20, 2012, Perez ran a GPS tracking software program for the past
30 days. The report showed Horton spending two or three nights every week with
Easley. The rest of the time Horton was staying at a number of other regular places, most
often a residence in Compton where his child’s mother lived. Horton had not, however,
registered any of these other addresses either.
Police Officer Jaime Pelayo was in charge of sex-offender registrants in Compton.
On May 30, 2012, Horton called Pelayo to set up an appointment so he could register as a
transient. He told Pelayo he was staying with his girlfriend in Downey “two or three
nights a week, but he was primarily transient.” When Pelayo told Horton he had to
register Easley’s address, Horton got belligerent, so Pelayo told him to call back after he
cooled down. Horton called back three weeks later and again asked to register as a
transient. Pelayo refused because he knew Horton was residing with Easley.
On July 25, 2012, Horton went to the Compton Police Department and again tried
to register as a transient. This time he was detained on an unrelated arrest warrant and
interviewed by Pelayo and Detective Price. Horton acknowledged he was not homeless;
among other places, he stayed with the mother of his child in Compton and with Easley
in Downey. He confirmed he was aware that “transient” meant having no place to stay.
Pelayo concluded Horton was basically being honest, so his goal was to get Horton
registered at Easley’s address. Pelayo told Horton he understood the Section 8 problem,
but “that in order to be in compliance with [the Act], he had to register [Easley’s] address
if he was going to continue to live there.” Horton still refused to register Easley’s
address.
Easley testified Horton had spent the night at her house once or twice a week
throughout the four years she had known him.
CONTENTIONS
1. The trial court erred by admitting GPS tracking evidence.
2. The trial court erred by excluding evidence that parole violations and criminal
convictions have different standards of proof.
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3. Horton’s attorney rendered ineffective assistance by not objecting to certain
testimony.
4. The trial court erred by excluding evidence of Detective Price’s opinion that
Horton was a transient.
5. The trial court erred by refusing to vacate a Three Strikes prior.
DISCUSSION
1. Any error in admitting GPS tracking evidence was harmless.
Horton contends the trial court erred by admitting evidence of GPS tracking
information that lacked an adequate foundation. We conclude any error was harmless.
a. Background.
Parole agent Perez testified at a pretrial hearing that she “handle[s] . . . a G.P.S.
sex-offender caseload.” She oversees 36 sex-offender parolees, all of whom she monitors
with a GPS computer program called Veritracks: “Basically it’s a monitor that’s attached
to their ankles, and it sends out signals to cell sites [and satellites], and it basically tells us
every minute where they’re at.” The monitoring system tracks a person’s location down
to a city block. Perez testified she could log onto an internet website and see where her
parolees were at any time, and that she spent four to six hours a day doing this.
Perez identified an eight-page report purporting to show Horton’s whereabouts
during specific periods of time. She had generated this report by means of the Veritracks
system. Perez did not know anything about how the Veritracks software or hardware
operated. Asked how accurate the system was, she said: “When we go out to look for
something, it’s pretty on task.” Perez did not know what the system’s margin of error
was.
Defense counsel objected to the lack of an evidentiary foundation explaining how
the system worked, and argued the evidence should not be admitted under the business
records exception to the hearsay rule. The trial court disagreed, ruling it would admit the
evidence assuming the prosecution could lay a proper foundation under the business
records exception. Defense counsel later renewed the objection on the ground Perez’s
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inability to explain the GPS system’s reliability or the science on which it was based
amounted to a confrontation clause violation. The trial court admitted the GPS evidence.
b. Discussion.
Horton contends “that absent a proper foundation to establish the functioning,
accuracy and reliability of the GPS tracking system, as well as Perez’s qualifications to
interpret the data, the trial court abused its discretion in admitting the GPS records.”
However, because it is clear that, even absent the GPS evidence, Horton would still have
been convicted, we conclude any error in admitting the evidence was harmless. (See
People v. Fuiava (2012) 53 Cal. 4th 622, 671 [harmless error test for wrongful admission
of evidence is Watson2 standard: it is reasonably probable a more favorable result would
have been reached without the error]; People v. Geier (2007) 41 Cal. 4th 555, 608,
disapproved on other grounds in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305
[“confrontation clause violations are subject to federal harmless-error analysis under
Chapman v. California (1967) 386 U.S. 18, 24, 87”].)
Section 290.011 provides, in pertinent part: “Every person who is required to
register pursuant to the [Sex Offender Registration Act] who is living as a transient shall
be required to register for the rest of his or her life as follows: [¶] . . . [¶] (b) A transient
who moves to a residence shall have five working days within which to register at that
address, in accordance with subdivision (b) of Section 290.” Subdivision (g) of
section 290.011 provides: “For purposes of the act, ‘transient’ means a person who has
no residence. ‘Residence’ means one or more addresses at which a person regularly
resides, regardless of the number of days or nights spent there, such as a shelter or
structure that can be located by a street address, including, but not limited to, houses,
apartment buildings, motels, hotels, homeless shelters, and recreational and other
vehicles.” (Italics added.) (See People v. Gonzales (2010) 183 Cal. App. 4th 24, 37
[“registration was required for each location in which defendant was regularly spending
time”].)
2
People v. Watson (1956) 46 Cal. 2d 818.
6
The trial record is replete with evidence Horton regularly resided with Easley.
Horton argues: “Although Appellant and Easley both admitted he spent time at her
house, the GPS documentation established just how much time that was.” But
section 290.011 merely requires that a person “regularly resides” at a particular address
“regardless of the number of days or nights spent there.” Horton has not cited any
authority demonstrating that a precise number of hours or days must be proved in order to
establish a violation of the statute. Horton argues, “While it is true that there was
testimony from Easley and statements by Appellant that he spent several nights a week at
Easley’s apartment, the GPS records provided a misleading aura of scientific certainty of
his guilt.” But “scientific certainty” is not required by the statute and, in this case, it was
mere icing on the cake given the undisputed non-GPS evidence showing Horton had been
regularly residing with Easley.
The GPS evidence had no important effect on the outcome of Horton’s trial and,
therefore, its erroneous admission would have been mere harmless error under any
standard.
2. Trial court did not err by admitting testimony about Horton’s arrest for
violating parole.
Horton contends the trial court erred by letting Perez testify she violated his parole
for failing to register, while not allowing Horton to explain to the jury that parole
violations and criminal convictions have different standards of proof. This claim is
meritless.
a. Background.
Prior to Perez’s testimony, defense counsel asked the trial court to preclude her
from testifying she had once violated Horton’s parole for failing to register: “I think that
can be confusing to the jury given there’s a different standard for parole violation versus
a criminal offense, and so I would ask that the People be precluded from inquiring into”
the parole violation. The trial court refused to exclude the testimony, but said defense
counsel could cross-examine Perez about the difference in standards.
7
Perez testified it was a violation of parole for Horton to spend the night at Easley’s
residence without Perez’s permission, and that she had once violated his parole for failing
to register Easley’s address. Defense counsel did not, however, ask Perez about the
standard-of-proof difference between establishing a parole violation (“preponderance of
the evidence” test) and a conviction for failing to register (“beyond a reasonable doubt”
test).
Later, while cross-examining Pelayo, defense counsel asked what standard “a
Board of Prison Terms commissioner” would apply in order to find a parole violation.
The trial court sustained a prosecution objection based on the speculative nature of the
question, and added the testimony was also inadmissible on relevance grounds.
b. Discussion.
Horton argues: “ . . . Perez violated Appellant’s parole for the very conduct for
which he was on trial in a criminal proceeding, which was a form of failure to register. In
the absence of an explanation that these different proceedings were subject to different
standards of proof the jury was apt to conclude that because Appellant’s parole had been
violated, he was therefore guilty of the instant offense as the two were based on the same
acts. The trial court therefore should have permitted the questioning of Detective Pelayo
on cross-examination relative to this issue, questioning that the court had earlier promised
would be allowed on cross-examination albeit with a different witness.”
The Attorney General initially points out the trial court gave defense counsel
permission to cross-examination Perez about the difference between the two standards of
proof, but that defense counsel failed to pursue this line of questioning. The Attorney
General argues Horton “cites no law supporting the proposition defense counsel’s choice
to forego this line of questioning somehow suggests the trial court erred by sustaining an
objection raised later in the trial in response to a different question asked during defense
counsel’s cross-examination of a different witness.” The Attorney General also argues
there is nothing in the record to suggest the jury believed it could convict Horton under
anything but the proper “beyond a reasonable doubt” standard.
8
Horton does not dispute the validity of either argument. We would add a further
point. It is not clear Perez violated Horton’s parole for the same conduct at issue in the
instant criminal prosecution. Perez explained Horton had been registered in Torrance,
but was spending a couple of nights a week with Easley in Downey. Perez testified:
“Well, if he’s going to be frequenting that address more than he’s in Torrance, yes, he
would have to register at that location, but outside of that he also had special conditions
of parole where he was supposed to be given permission to stay anywhere other than the
address or the residence of record where he actually registered at.” (Italics added.)
We agree with the trial court that defense counsel’s question to Pelayo was both
speculative and irrelevant.
3. No ineffective assistance of counsel regarding Pelayo’s testimony.
Horton contends he was denied the effective assistance of counsel because his trial
attorney failed to object to certain testimony from Pelayo regarding Horton’s past
experience with the criminal justice system. This claim is meritless.
a. Legal principles.
A claim of ineffective assistance of counsel based on Strickland v. Washington
(1984) 466 U.S. 668 [104 S. Ct. 2052], has two components: “ ‘First, the defendant must
show that counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’
[Citation.] To establish ineffectiveness, a ‘defendant must show that counsel’s
representation fell below an objective standard of reasonableness.’ [Citation.] To
establish prejudice he ‘must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ [Citation.]” (Williams v. Taylor (2000) 529 U.S. 362, 390-391.) “[T]he
burden of proof that the defendant must meet in order to establish his entitlement to relief
9
on an ineffective-assistance claim is preponderance of the evidence.” (People v. Ledesma
(1987) 43 Cal. 3d 171, 218.) An appellate court “need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies.” (Strickland v. Washington, supra, 466 U.S. at p. 697.)
b. Background.
The following colloquy occurred during the course of Pelayo’s cross-examination:
“Q. You indicated multiple times you believed Mr. Horton was being honest with
you during the course of this interrogation; correct?
“A. Yes.
“Q. And during the course of this interrogation, he indicated to you he did not live
with Ms. Easley, did he not?
“A. He indicated a lot of things. I don’t know what part in the interview he
indicated he didn’t live there, but he would make a statement like that and then explain
himself that he would sleep there.
“Q. In other words, he had a differing opinion of what ‘lived there’ meant than
what you understood it to be. Would that be fair?
“A. If you’re asking my opinion in interpreting how he would answer, he was
trying to avoid giving a definitive answer because he knew, in my opinion, it could be
used against him.
“Q. It didn’t occur to you that maybe he just differed in his opinion [from] you?
“A. It occurred to me that Mr. [Horton] was very well versed in the legal system.
He’s been in and out of prison. He knew how to talk to us as detectives. I took it as it
wasn’t his first time being interrogated or interviewed.”
c. Discussion.
Horton contends there was ineffective assistance because defense counsel should
have objected to Pelayo’s testimony since it prejudiced him in the eyes of the jury. We
disagree because we conclude Horton was not prejudiced by what Pelayo said.
Evidence of a defendant’s prior arrests or convictions is generally deemed unduly
prejudicial and inadmissible. “There is little doubt exposing a jury to a defendant’s prior
10
criminality presents the possibility of prejudicing a defendant’s case and rendering
suspect the outcome of the trial.” (People v. Harris (1994) 22 Cal. App. 4th 1575, 1580;
see, e.g., People v. Anderson (1978) 20 Cal. 3d 647, 650 [“it has long been held that
evidence of an accused’s prior arrests is inadmissible”].)
However, although “[a]n improper reference to a prior conviction may be grounds
for reversal in itself . . . [such evidence may be] nonprejudicial ‘in the light of a record
which points convincingly to guilt.’ ” (People v. Rolon (1967) 66 Cal. 2d 690, 693;
compare People v. Harris, supra, 22 Cal.App.4th at p. 1581 [harmless where evidence of
guilt was “overwhelming”] and People v. Duran (1969) 269 Cal. App. 2d 112, 119
[harmless where evidence “convincingly pointed to defendant’s guilt”] with People v.
Rolon, supra, 66 Cal.2d at pp. 693-694 [not harmless where there were unimpeached
alibi witnesses and the admitted perpetrator testified his accomplice had been someone
else]) and People v. Allen (1978) 77 Cal. App. 3d 924, 935 [not harmless because “an
extremely close case”].)
This was not a close case. There was overwhelming evidence Horton intentionally
refused to register Easley’s residence because he did not want to put her Section 8
benefits at risk. Moreover, given the nature of the charges, the jury knew Horton had
been convicted of a sex offense and thus must have had first-hand experience with the
criminal justice system. During voir dire, the trial court told the jury the parties had
stipulated Horton “has suffered a conviction of a crime that requires him to register as a
sex offender.” Horton argues that, although the jury knew he had suffered one prior
conviction, “Sgt. Pelayo’s comments portrayed him as a revolving door, career criminal,
something quite different from a one time offender.” We disagree. Pelayo’s fleeting
remark that Horton had been “in and out of prison” was far from devastating.
Because we conclude there is no reasonable probability Horton would have gained
a more favorable outcome had an objection to Pelayo’s remark been sustained (see
Williams v. Taylor, supra, 529 U.S. at pp. 390-391), we hold Horton did not suffer
ineffective assistance of counsel.
11
4. Trial court did not err by excluding evidence of Price’s opinion.
Horton contends the trial court erred by excluding evidence that, in Detective
Price’s opinion, Horton should have been classified as a transient. This claim is
meritless.
a. Background.
During Sgt. Pelayo’s cross-examination, defense counsel asked if Detective Price,
who had been present when Pelayo interviewed Horton, “indicated to you that he
believed Mr. Horton was transient?” The trial court sustained a relevancy objection.
When defense counsel kept posing the same question, the trial court said: “It’s not
relevant what the officer thinks under these circumstances.”
Later, at sidebar, the trial court said that, if the defense wanted to have the jury
hear Price’s professional opinion regarding Horton’s registration status, it should call
Price as a witness rather than trying to smuggle in some passing comment he made
during Horton’s interview. The court ruled the evidence was not relevant, and was more
prejudicial than probative under Evidence Code section 352: “It will mislead the jury
because it’s an opinion of . . . a fellow officer during the course of the interview. You’re
saying it goes towards the totality of the circumstances. The totality of the circumstances
account for whether or not the officer decides to make an arrest, not for whether or not
the case has been proven beyond a reasonable doubt . . . , whether or not the defendant
. . . established [a] residence or not.”
b. Discussion.
Horton argues Price’s “opinion that Appellant was transient was clearly relevant to
and supported Sgt. Pelayo’s testimony that the determination of a sex offender’s
registration status involved subjectivity. That it was subjective reflected on the issue of
whether or not Appellant was complying with the registration law, the ultimate issue in
the case. One officer felt he was, another felt he wasn’t. Without the evidence, the jury
was left only with the testimony of Perez and Pelayo to the effect that Appellant was not
in compliance with the registration law.” Horton “contends that the exclusion of Det.
12
Price’s opinion that he was a transient for purposes of the registration law violated his
federal constitutional right to present a complete defense.”
We are not persuaded. The trial court did not exclude all evidence of Price’s
opinion, but merely opposed defense counsel’s attempt to introduce that opinion in the
context of Pelayo’s testimony about what might have been said during Horton’s
interrogation.
As the Attorney General points out, the trial court “recognized . . . the proffered
statement was being taken out of context” and that “an officer who is conducting an
interrogation might ‘say any variety of things,’ and that such statements were not relevant
or admissible to prove a defendant’s guilt or innocence.” If Price had an opinion to offer
on the issue of Horton’s registration status that contradicted Pelayo’s opinion, Horton
was free to call him as a witness.
5. Romero motion was properly denied.
a. Legal principles.
Horton contends the trial court abused its discretion by refusing to dismiss, under
the authority of People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, the prior
conviction used to double his sentence under the Three Strikes law. This claim is
meritless.
The factors to be considered in ruling on a Romero motion were set forth in
People v. Williams (1998) 17 Cal. 4th 148, 161: “[I]n ruling whether to strike or vacate a
prior serious and/or violent felony conviction allegation or finding under the Three
Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in
reviewing such a ruling, the court in question must consider whether, in light of the
nature and circumstances of his present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.”
13
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation
under section 1385 is subject to review for abuse of discretion.” (People v. Carmony
(2004) 33 Cal. 4th 367, 375.) “In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the
absence of such a showing, the trial court is presumed to have acted to achieve legitimate
sentencing objectives, and its discretionary determination to impose a particular sentence
will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial
judge.’ ” ’ [Citation.] Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at pp. 376-377.) Hence, “ ‘[w]here the record
demonstrates that the trial court balanced the relevant facts and reached an impartial
decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling,
even if we might have ruled differently in the first instance’ ” (Id. at p. 378.)
b. Discussion.
As a juvenile, Horton was found to have committed two felony offenses:
receiving stolen property and taking a vehicle without the owner’s consent (1994). His
subsequent adult convictions included four felonies and three misdemeanors, including:
taking a vehicle without the owner’s consent (1996); forcible rape (1997); failing to
register as a sex offender (2002); misdemeanor hit and run (2005); possession of firearm
by a felon (2005); petty theft with a prior (2010); and, failing to appear (2011 and 2012).
The trial court pointed to the consistency of Horton’s criminal history as the primary
reason for denying his Romero motion: “So [in] this court’s estimation, it would be [an]
abuse of discretion to grant a Romero motion as to that prior strike. There has been a
continuing conduct. He suffered . . . three separate state-prison commitments, a couple of
which were doubled because of the prior strike, and so the court is going to decline to
exercise its authority under Romero.”
14
Horton argues his “current offense was minor and technical. The issue was simply
where and how Appellant would register, not if he would.” Not so. The trial record
shows Horton was repeatedly informed of what he needed to do to comply with the
registration law and that he simply chose not to do so. In the trial court’s words: “I think
he knew exactly what was going on. It was kind of fudging a little bit because he didn’t
quite like what they were making him do. [¶] I understand that it was onerous and he
couldn’t register at the place he wanted to register at because his girlfriend was getting
Section 8, so he was prevented from doing that, but bottom line is he had other options.
When he continued to go forward with this . . . he did know that he was in violation of
the law and . . . ultimately it was going to turn out like this at some point.”
The trial court did not err by denying Horton’s Romero motion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
KITCHING, J.
ALDRICH, J.
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