Filed 8/21/20 P. v. Mayberry CA2/3

  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                     DIVISION THREE


THE PEOPLE,                                                   B296648

       Plaintiff and Respondent,                              Los Angeles County
                                                              Super. Ct. No. MA073301
       v.

MICHAEL DANIEL
MAYBERRY,

       Defendant and Appellant.



      APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed.
      C. Matthew Missakian, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
                           INTRODUCTION

      Defendant Michael Daniel Mayberry was convicted by a
jury of murdering his wife and unlawfully possessing a firearm.
The jury found a firearm enhancement allegation true. Defendant
appeals, contending trial counsel was ineffective and remand is
necessary to allow the court to consider mental health diversion
and imposition of a lesser firearm enhancement. We affirm the
judgment.

                  PROCEDURAL BACKGROUND

       Defendant was charged by information with first degree
murder (Pen. Code,1 § 187, subd. (a); count 1) and with being a
felon in possession of a firearm (§ 29800, subd. (a)(1); count 2).
Although three firearm enhancement allegations were initially
charged, two were dismissed before trial. On February 25, 2019,
the jury found defendant guilty of both counts and found the
remaining firearm enhancement allegation under section
12022.53, subdivision (d), true.
       The court sentenced defendant to a term of 50 years to life
for the murder, consisting of 25 years to life for count 1 plus 25
years to life for the firearm enhancement. The court added a two-
year concurrent term for count 2, felon in possession of a firearm.
The court ordered defendant to pay $9,007.57 in restitution to a
victim and another $7,500 to the California Victim Compensation
Board. The court also imposed a maximum restitution fine of
$10,000.
       Defendant filed a timely notice of appeal.



1   All undesignated statutory references are to the Penal Code.




                                     2
                      FACTUAL BACKGROUND

1.       The People’s Case
         1.1.   The Relationship Between Defendant and His
                Wife
       Defendant married Sandy Mayberry in February 2014.
They had three children together. They also raised Sandy’s older
son from a prior relationship.2
       After a few years, Sandy had become unhappy with the
relationship. Defendant did not work often, and he “had trouble
with money.” Sandy was the primary wage earner in the family.
By November 2017, Sandy wanted to leave the relationship. She
stayed in the relationship, however, because defendant
threatened to kill himself if she left.
         1.2.   Sandy Leaves for a Holiday in Mexico
      On February 23, 2018, a Friday, Sandy resolved to go away
for the weekend to Ensenada, Mexico. She wanted some time by
herself to just sit on the beach and rest. That Friday, she seemed
“really happy.”
      Defendant was out of town that weekend. He was due to
return on Tuesday. The three older children stayed at home
where they were watched by defendant’s mother. Devon, the
youngest child, stayed with Sandy’s sister, Viridiana Valencia.
      On Saturday, defendant began calling and texting
Valencia. Defendant kept calling to ask if Valencia “knew about
Sandy” because Sandy was not taking his calls. Then he began
texting, asking questions about photos of two items he found in


2   For clarity, we refer to some individuals by their first names.




                                      3
Sandy’s purse. One was a receipt showing Sandy had sent money
to Mexico. Another was some writing, which defendant believed
was a letter from Sandy to another man. Defendant expressed
concern that Sandy might be having a relationship with someone
else. He sounded anxious and desperate. Valencia assured him
there were innocent explanations for the items and asked him to
trust Sandy.
       On Sunday, defendant texted Valencia, stating he wanted
to come and get Devon. Valencia encouraged defendant to let her
and her mother take care of Devon, but defendant insisted on
picking him up. Once defendant found out where Devon was, he
texted “I’m on my way” and broke off communication.
       When defendant arrived, he had an “anxious, desperate”
face. He asked Valencia to call Sandy and help him save the
marriage. Valencia encouraged him to let Sandy leave the
marriage, telling him, “It’s better if you guys are friends.”
Defendant insisted, “No. No. We have too much together. We
have a home. We have cars. We have animals. We have the kids.”
       Valencia relented and called Sandy, who became angry.
She did not want to speak to defendant, and she told her sister
she would call back later. After this, defendant left with Devon.
       When Sandy called back, she told her sister she was coming
home. She would gather the children and come stay with
Valencia. Sandy was afraid of defendant and wanted to leave
him. This was not the first time Sandy told Valencia she was
afraid of defendant.
     1.3.   The Murder
      That Sunday afternoon, defendant seemed in good humor.
As he talked and laughed with their neighbors, Sandy returned




                               4
home. She and defendant went inside. Defendant’s mother was
already in the house with the four children.
       Inside the house, defendant and Sandy began arguing
about Sandy’s phone. Defendant wanted the phone, and Sandy
did not want to give it to him. Both were yelling. Defendant took
the phone, and Sandy went to their neighbor, Terrell Sayles, and
asked if she could use his phone to call the police. She did not call
the police because defendant returned her phone. Sandy ran back
to the house, and defendant followed her.
       Defendant’s mother, who was inside the house, saw
defendant with a gun in his hand. She ran back towards the
children, and she heard three shots. She turned, ran outside, and
saw Sandy on the ground.
       Several minutes after defendant returned the phone to
Sandy, Sayles was standing in the doorway of his home when he
also heard gunshots. He ran outside and saw “Sandy come diving
out of the doorway in front of the house, land[ing] on the
walkway in front of her house.” She was bleeding.
       Defendant came outside holding a gun and walked over and
stood over Sandy’s head. Sayles begged him to put the gun down.
Defendant’s mother came out and tried to put herself between
defendant and Sandy. Defendant’s mother yelled for someone to
call 911. Defendant kept saying, “She made me do this.”
       Defendant walked away from Sandy. Inside the house, the
children were crying, and defendant’s mother went inside to
attend to them. Sayles kept pleading with defendant to put the
gun down. Sayles was screaming at him, but defendant did not
acknowledge him or even appear to hear him. Defendant just
kept saying “she made me do this” or “you made me do this.” This
went on for three or four minutes.




                                 5
       As Sayles continued to plead with him, defendant returned
to Sandy who appeared to be trying to crawl toward the
neighbor’s house. Sayles thought defendant looked calmer than
he had when he had come out of the house.
       Defendant pointed the gun at Sandy’s head and fired again.
Sandy stopped moving. Defendant dropped the gun, took out his
cell phone, and called 911. He told the operator he had just shot
his wife.3
       While talking with the 911 operator, defendant tried to pick
Sandy up. He held her, saying “Sandy, you made me do this. You
made me do this.” Defendant calmly told a responding deputy
sheriff, “I did it. I did it. I’m sorry.”
       Sandy was pronounced dead at the scene. She had been
shot four times in the back and once in the head. Two of the
wounds were immediately life threatening: one to the forehead
that went through the brain; and another to the back that went
through “the inferior vena cava as well as the right lung.”
2.       Defense Case
         2.1.   Defendant’s Testimony
      Defendant testified that he suffered from mental illness
most of his life. He had seen mental health professionals since he
was eight years old. He was diagnosed with schizophrenia or
schizoaffective disorder. Because of his mental health issues,
defendant received assistance from SSI. He was prescribed
Prozac, Abilify, and another medication he could not remember.
      Three months before killing his wife, defendant stopped
taking his medications. When he did not take his medications, he


3   The jury heard an audio recording of defendant’s 911 call.




                                     6
heard voices. The voices would usually tell him to kill himself.
Without the medication, he was also depressed. He thought
stopping the medication would improve his relationship with
Sandy.
       When Sandy returned home that Sunday afternoon, they
argued about “her going out there to Mexico and stuff.”
Defendant had not approved of the trip. When Sandy started
using her phone, defendant took it from her, asking why she was
texting when he was trying to talk with her. After he returned
the phone, they continued arguing. Sandy threatened defendant
was “not going to see the kids again.” This was the last thing
defendant remembered Sandy saying.
       Defendant retrieved his handgun, telling Sandy he was
going to kill himself. Defendant felt “raged and upset.” He was
“angry of her words.” He believed Sandy would take the kids and
not let him see them. After Sandy spoke those words, he “just
blacked out.” He did not remember how he started firing the gun.
“My mind is—just went blank, and I just was shooting.” He
testified he didn’t want to shoot Sandy. He did not remember
walking away and coming back to shoot her one last time. He did
not hear anyone trying to get him to stop.
       Defendant denied killing Sandy because she wanted to
leave him. Defendant had never been violent with Sandy. After
he shot Sandy the last time, he realized what he had done and he
called 911.
      2.2.   Dr. Stephen Wilson
       The defense called Dr. Stephen Wilson, a psychiatrist, who
evaluated defendant and reviewed certain medical records.
Wilson diagnosed defendant with schizoaffective disorder, which
is a combination mood and thought disorder. The thought




                                7
disorder results in altered thinking, including auditory
hallucinations. The mood disorder is depression. Both symptoms
were documented in the medical records that Wilson reviewed.
Wilson testified that the schizoaffective disorder could diminish a
person’s capacity “for good judgment or judgment in general.”

                         DISCUSSION

1.    Counsel was not ineffective.
      Defendant contends counsel was ineffective for failing to
object: when a witness related a hearsay statement that
defendant’s wife was afraid of him; during argument when the
prosecutor argued facts not in evidence; and during argument
when the prosecutor misstated the burden of proof. We disagree.
      1.1.   Pertinent Legal Principles
      To establish ineffective assistance of counsel, the defendant
must demonstrate that: (1) counsel’s conduct fell below an
objective standard of reasonableness under prevailing
professional norms; and (2) counsel’s deficient performance was
prejudicial—that is, it is reasonably probable that, but for
counsel’s deficient performance, the result of the trial would have
been more favorable to the defendant. (In re Crew (2011) 52
Cal.4th 126, 150; see also Strickland v. Washington (1984) 466
U.S. 668, 687.)
      “If a claim of ineffective assistance of counsel can be
determined on the ground of lack of prejudice, a court need not
decide whether counsel’s performance was deficient.” (In re Crew,
supra, 52 Cal.4th at p. 150.)




                                 8
      1.2.   The Hearsay Statements
       Defendant contends that counsel should have objected to
testimony by Valencia that Sandy told her that Sandy wanted to
leave her home with her children because she was afraid of
defendant. According to Valencia, this was not the first time that
Sandy had told her that she was afraid of defendant.
       Even if Valencia’s account of Sandy’s statements was
inadmissible hearsay and counsel’s performance was deficient,
there is no reasonable probability the trial would have turned out
more favorably to defendant if the statements had been excluded.
(See In re Crew, supra 52 Cal.4th at p. 150.)
       Defendant’s conviction for first degree murder was not
based on a theory that he harbored a long-standing intent to
murder Sandy. The evidence that defendant committed first
degree murder was based on the execution-style shooting when
defendant returned to shoot the prostrate Sandy in the head.
This occurred after the initial shots had been fired in the house,
after defendant had followed Sandy out of the house with the gun
in his hand, after his mother and Sayles pleaded with him to put
the gun down, after defendant repeatedly said that “she made me
do this,” after defendant had withdrawn into the house, and after
Sandy had tried to crawl away. In other words, minutes passed
during which others tried to intervene to bring defendant under
control, leaving time for reflection and premeditation.
       While counsel’s decision not to object did not lead to the
admission of prejudicial evidence, there were tactical reasons for
the defense to let Valencia’s testimony about Sandy’s statements
slip by with as little fanfare as possible. Counsel may well have
decided that an objection would unnecessarily elevate the
importance of Valencia’s testimony. (See People v. Williams




                                9
(1997) 16 Cal.4th 153, 215 [objection would have highlighted
unfavorable testimony].) And it was clear enough that Sandy had
serious reservations about defendant so it was hardly a surprise
that Sandy’s reservations extended to fears about him and his
behavior.
       In short, defendant was not prejudiced by counsel’s failure
to object to Valencia’s testimony about Sandy’s fear of defendant.
      1.3.   The Prosecutor’s Rebuttal Argument
       During rebuttal argument, the prosecutor contended that
defendant had made up his testimony about “blacking out” and
not remembering the details of the shooting. The prosecutor told
the jury this story was “a bit convenien[t] … ‘Cause the
blackout—the first time it’s ever mentioned is ten months after
he executes his wife to his psychologist that came and testified as
the expert on the defense side.” The prosecutor went on to say
that “he doesn’t mention it to the arresting officers” or “to the
detectives that interview him subsequently.” The prosecutor also
pointed out that defendant had not mentioned blacking out
during the 911 call played for the jury. The prosecutor argued
defendant’s claim of memory loss was also inconsistent with his
being calm while talking to the 911 operator, and his telling the
neighbors “she made me do it.”
       At this point in the prosecutor’s rebuttal argument, the
court called for a sidebar with the lawyers. The court was
concerned that defendant’s statements to law enforcement had
not been introduced into evidence. The court acknowledged that
some comments defendant made to arresting officers had been
admitted but thought that the prosecutor was risking reversible
error in commenting “about him invoking his Fifth Amendment
privilege.” The court knew defendant had not invoked his Fifth




                                10
Amendment rights because defendant gave a recorded statement,
but the jury did not because the recorded statement had not been
presented to the jury. The court asked the prosecutor “to be clear
that any reference that you’re making is to statements that have
been admitted.”
       The court invited comment from defense counsel. He
stated: “I agree. I’m not going to generally object. It’s argument.
But I think there was a statement given. It was never introduced.
And so it took to create that [sic] I think would be a problem.
Hopefully we can.”
       The court told the prosecutor to “clarify so there isn’t the
inference that it has to do with any invoking his rights or
something like that.”
       After the sidebar, the prosecutor continued before the jury:
“So I stated earlier, when the arresting officers arrived, the first
thing out of his mouth without any questioning, he just blurts
out, ‘I shot my wife.’ There’s no mention of a blackout to those
arresting officer [sic]. He just said, ‘I shot my wife. I’m the
shooter.’ ” The prosecutor pointed out that defendant’s medical
records had not mentioned blackouts. The prosecutor concluded
that defendant’s story about blacking out “goes to his credibility
when he took that stand.”
       On appeal, defendant contends counsel was ineffective for
failing to object and ask the court to admonish the jury to
disregard the prosecutor’s implication that defendant had
provided a statement to the detectives and her specific assertion
that he did not mention a blackout to detectives. Further, counsel
should have requested the court to admonish the jury to
disregard the claim that defendant “had never mentioned a
blackout to anyone until 10 months after the shooting, because




                                11
there was no evidence to support this assertion.” Defendant also
contends the disclosure that he did not mention a blackout to
investigating detectives was “devastating.” In defendant’s view,
this argument “powerfully undercut” his credibility and was
therefore prejudicial.
       We begin by noting that the defense expressly stated it was
not “going to generally object.” The defense not only waived the
objection, it went on to give a reason for its decision not to object:
“It’s argument.” In any event, we reject the contention that
counsel was ineffective in not objecting to the argument.
       Two references in the prosecutor’s argument are at issue
here. One was that there was no evidence that defendant had
been interviewed by detectives and that he made no mention of a
blackout during that interview. The other was the statement that
defendant did not tell anyone of the blackout until 10 months
after the murder.
       Defendant did not claim he had blacked out when he was
being arrested, he did not make such a claim to anyone else who
was at the scene, and there was no mention of a blackout during
his 911 call. In addition, defendant’s behavior during and after
the shooting, including his ready admission that he had shot his
wife to death, supported the argument that this was not a man
who had blacked out during the shooting. Accordingly, the
argument that defendant’s blackout claim was bogus was
supported by the evidence at trial. Given that the overall
argument was fair and permissible, the prosecutor’s mistaken
references to additional facts that supported the argument were
not material. That is, passing references to detectives and the 10-
month lag time could not have made a difference in the outcome
of the trial.




                                 12
      There were also sound tactical reasons for defense counsel’s
decision not to object to the prosecutor’s argument. As noted,
defendant’s 911 call and his statements to the operator had been
played to the jury and there was no mention of any blackout. The
deputy sheriff who arrived on the scene testified defendant
approached him and calmly said: “I did it. I did it. I’m sorry.”
Again, there was no mention of a blackout, but there was a
confession of the shooting. An objection to the references to
detectives and the passage in time would have come across as a
quarrel over minor details when the larger picture supported the
prosecutor’s argument. And objecting to those details (detectives,
time lag) and leaving everything else undisturbed would only
have emphasized the probative value of the evidence.
      We conclude that the decision not to object to the
prosecutor’s argument did not fall below an objective standard of
reasonableness under prevailing professional norms. (In re Crew,
supra, 52 Cal.4th at p. 150.)
      1.4.   The Prosecutor’s Argument Regarding
             Reasonable Doubt
        The prosecutor attempted to explain the reasonable doubt
standard during closing argument: “Let’s talk about the standard
in which you’re going to judge everything in this case, the
evidence. It’s just beyond a reasonable doubt. The jury
instructions defined it to you, and I don’t want to get into too
much that’s outside of what the jury instructions tell you; so what
it tells us it is. It’s an abiding conviction that the charge is true.
The evidence need not eliminate all possible doubt. Okay. So
sometimes easier to talk about reasonable doubt and what it
isn’t; so I’ll give you a few examples.”




                                 13
       “What it’s not is not proof beyond any doubt or all doubt.
It’s not proof beyond a shadow of a doubt, and it’s not 100 percent
certainty. What a good definition that’s kind of grown out of a lot
of cases over the years is it’s the only reasonable explanation, the
only reasonable explanation, that fits all the facts. Okay.”
       The prosecutor’s purported explanation of reasonable doubt
as the “only reasonable explanation” that “fits all the facts” is
confusing and unhelpful. The challenged comment, however, was
limited to a single sentence and followed on the heels of a correct
statement of the standard of proof. And regarding a “reasonable
conclusion” (not explanation), the jury was properly instructed
that it had to be “convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the defendant
had the required intent and mental state.” When considering
circumstantial evidence, the jury was also instructed it had to
“accept only reasonable conclusions and reject any that are
unreasonable.”
        In short, when viewed in context, it is not reasonably likely
that the prosecutor’s comment would have been interpreted by
the jury as lowering the People’s burden. Accordingly, counsel’s
decision not to object did not fall below an objective standard of
reasonableness under prevailing professional norms. (In re Crew,
supra, 52 Cal.4th at p 150.)
      1.5.   Cumulative Error
      Defendant also contends that the cumulative effect of the
errors during his trial mandates reversal. Because we have found
no error, there is no cumulative error to evaluate. (See People v.
Lopez (2018) 5 Cal.5th 339, 371.)




                                 14
2.    Mental Health Diversion
       Next, defendant contends this court must conditionally
remand the matter to permit the trial court to consider whether
to grant him mental health diversion under section 1001.36. We
disagree.
       Section 1001.36 went into effect on June 27, 2018. (Stats.
2018, ch. 34, § 24, eff. June 27, 2018 (A.B. 1810).) The new law
provided trial courts with the discretion to grant “pretrial
diversion, for the purpose of mental health treatment for up to
two years, if it finds the defendant has a mental disorder that
was a significant factor in the commission of the charged offense.”
(People v. McShane (2019) 36 Cal.App.5th 245, 259, review
granted Sept. 18, 2019, S257018 (McShane).) The statute
requires the court to dismiss the criminal charges if the
defendant performs satisfactorily in diversion. (§ 1001.36, subd.
(e).) Effective January 1, 2019, the Legislature amended the
statute to preclude diversion for defendants charged with certain
serious offenses including murder. (Stats. 2018, ch. 1005, § 1, eff.
Jan. 1, 2019 (S.B. 215).)
       Recently, the California Supreme Court held that section
1001.36 applies retroactively to cases in which the judgment is
not yet final. (People v. Frahs (2020) 9 Cal.5th 618, 624.) Whether
section 1001.36 is retroactive as originally enacted, but not as
amended, is under review by the Supreme Court. (McShane,
supra, 36 Cal.App.5th at pp. 260–261, review granted; People v.
Cawkwell (2019) 34 Cal.App.5th 1048, 1053, review granted Aug.
14, 2019, S256113.)
       In McShane, the court addressed the same contention
defendant raises here. (McShane, supra, 36 Cal.App.5th 245,
review granted.) McShane argued he was entitled to the




                                15
retroactive benefit of the 2018 diversion law, but that the 2019
amendment excluding those charged with murder did not apply
to him. (Id. at pp. 259–260.) The court disagreed, holding that if
section 1001.36 was retroactive, it was retroactive as amended.
(Id. at pp. 260–261.) The fact that the defendant was briefly
eligible for pretrial diversion under the statute, as originally
enacted, was irrelevant to the retroactivity analysis. (Id. at
p. 260.)
       We agree with McShane. There is no impediment in
applying the amended version of section 1001.36 retroactively to
defendant. Nor is there any unfairness or injustice in doing so.
Because defendant was convicted of murder he is ineligible for
mental health diversion under the statute.
3.    Imposition of a Lesser Included Firearm Enhancement
       Defendant also contends remand is necessary because
“[t]he record contains no indication that the trial court here was
aware of and considered its power to impose an ‘uncharged’ lesser
included gun enhancement instead of the greater enhancement.”
Although appellate courts are currently split on whether a
sentencing court may impose a lesser included uncharged
enhancement under section 12022.53, there is no need for us to
wade into this controversy. (Compare People v. Morrison (2019)
34 Cal.App.5th 217 [courts may impose unpled lesser
enhancements] with People v. Tirado (2019) 38 Cal.App.5th 637,
review granted Nov. 13, 2019, S257658 [courts may not]; People
v. Garcia (2020) 46 Cal.App.5th 786, review granted June 10,
2020, S261772 [same]; People v. Yanez (2020) 44 Cal.App.5th 452,
review granted Apr. 22, 2020, S260819 [same].) In this case, the
court made it unequivocally clear that it would not strike the
firearm enhancement found true by the jury. Accordingly,




                                16
remand to allow the court to impose a lesser included uncharged
enhancement would be a futile act.
       Section 12022.53 lists three enhancements of increasing
severity. (§ 12022.53, subds. (b), (c), (d).) For personal use of a
firearm in the commission of certain felony offenses, the law
provides an additional sentence of 10 years. (Id., subd. (b).) For
personal and intentional discharge of a firearm, the law provides
an additional 20-year term. (Id., subd. (c).) A 25-years-to-life
enhancement is provided for the personal and intentional
discharge of a firearm causing great bodily injury or death. (Id.,
subd. (d).) An amendment that became effective on January 1,
2018 provides that courts may pursuant to section 1385 “strike or
dismiss an enhancement otherwise required to be imposed by this
section.” (§ 12022.53, subd. (h).)
       In defendant’s case, the People charged and the jury found
true the allegation that defendant “personally and intentionally
discharged a firearm, a handgun, which caused great bodily
injury and death” under section 12022.53, subdivision (d). At
sentencing, the court observed that defendant had not asked the
court to strike the firearm enhancement. The court explained it
would not exercise that discretion in any event, and, importantly:
“[I]n no way, shape, or form would I exercise it in this case based
on the egregious nature of this case and the fact that this, in my
opinion, was planned out on your part by purchasing that gun in
advance or having that gun available to you.” Given the court’s
emphatic statements, it would be pointless to remand the case to
allow the court to exercise its discretion to strike the greater
enhancement and—assuming it has that authority— impose an
uncharged lesser enhancement.




                                17
4.    The Restitution Fine
       Finally, defendant contends trial counsel was ineffective for
failing to request a hearing to determine defendant’s ability to
pay the $10,000 restitution fine. “If the record on appeal fails to
show why counsel acted or failed to act in the instance asserted to
be ineffective, unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no
satisfactory explanation, the claim must be rejected on appeal.”
(People v. Kraft (2000) 23 Cal.4th 978, 1068–1069.)
       Here, the record is insufficiently developed to address the
issue on direct appeal. In any event, considering the gravity of
defendant’s offense, counsel could have reasonably assumed the
court would deny any request to reduce the restitution fine. In
sum, on this record, we cannot find counsel was ineffective for
failing to request a hearing to determine defendant’s ability to
pay the $10,000 restitution fine.




                                18
                     DISPOSITION

    The judgment is affirmed.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                   LAVIN, J.
WE CONCUR:



    EDMON, P. J.



    EGERTON, J.




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