Filed 9/3/14 P. v. Kruzik CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065945

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FMB1000476)

JOSHUA ALAN KRUZIK,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Rodney A. Cortez, Judge. Affirmed.

         Kamala D. Harris, Attorney General, Dane R. Gillette and Julie L. Garland,

Assistant Attorneys General, Charles C. Ragland and Kimberley A. Donohue, Deputy

Attorneys General, for Plaintiff and Respondent.

         Michael B. McPartland, under appointment by the Court of Appeal, for the

Defendant and Appellant.
       A jury convicted Joshua Alan Kruzik of one count of second degree murder (Pen.

Code,1 § 187, subd. (a); count 1) and one count of assault on a child with force likely to

produce great bodily injury resulting in death (§ 273ab; count 2). The court sentenced

Kruzik to 25 years to life on count 2, and stayed under section 654 the 15 year-to-life

term on count 1. Kruzik contends the court prejudicially erred by failing to instruct the

jury that if it was convinced he was guilty of homicide, but had a reasonable doubt about

whether the crime was murder or manslaughter, it had to give him the benefit of the

doubt and return a verdict finding him guilty of manslaughter rather than murder. We

conclude the court adequately instructed the jury on application of the reasonable doubt

standard in determining whether Kruzik committed murder or manslaughter.

Accordingly, we affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

       On November 19, 2010, Timothy Allen and Melissa Marnell asked Kruzik to

babysit their 19-month-old daughter, A.A., while they went to a tattoo parlor. Kruzik

planned to stay at Allen and Marnell's home for two nights before leaving town.

       At approximately 10:00 that evening, Kruzik went to Allen and Marnell's house to

babysit A.A., who was already asleep in her crib. Allen knew Kruzik had had at least one

or two drinks but did not believe him to be drunk or very intoxicated and felt comfortable




1      All statutory references are to the Penal Code unless otherwise stated.
                                             2
leaving him with A.A. He told Kruzik to call him and Marnell if any issues arose, and

left.

        Allen and Marnell returned home the next morning at about 12:30 a.m. and woke

Kruzik up from their bed, telling him to go sleep on the couch. At about 9:00 a.m., Allen

checked on A.A. and saw that she appeared to be sleeping. He checked on A.A. an hour

later, this time approaching her crib. A.A. did not appear to be breathing, was very cold,

and her face was visibly blue and bruised. Allen yelled for Kruzik to call 911 and, with

the instructions of the 911 operator, Kruzik performed CPR on A.A.

        Shortly after the 911 call, paramedics arrived and took over A.A.'s medical care.

They noted she had no pulse, was not breathing, and was "gray ash" in color as she was

being transported to a hospital. A.A. died on November 21, 2010.

        An autopsy of A.A.'s body revealed evidence of three impacts to the head: one on

the top of her head, one to the side of her head, and one to her right forehead. The

forensic pathologist opined that A.A.'s death was a homicide caused by blunt force

trauma to the head. A.A. exhibited signs of brain swelling, subdural hemorrhaging, and

retinal hemorrhaging. She also had an abdomen injury that the forensic pathologist

believed was likely caused by a blow.

        At trial, the People introduced audio recordings of several interviews of Kruzik,

including one conducted on December 1, 2010, by a sergeant from the San Bernardino

County's Sheriff's Department in the presence of a Naval special agent. During this

interview, Kruzik explained that his friend gave him a ride to Allen and Marnell's house

at approximately 10:30 p.m. on the night of the incident. Kruzik then spoke briefly with

                                             3
Allen before he left. Later that evening, A.A. started crying, which led Kruzik to wake

up. While trying to calm her down, Kruzik was holding A.A. and "stumble[d] over . . . a

big pile of toys . . . [and] fell right on her." He said she stopped crying instantly. He

claimed A.A.'s eyes became "puffy" and that "she had blood in her lip and in her nose."

He noted that she was still breathing. He tried to wake A.A. by shaking her, smacking

the side of her head, putting his hand over her mouth and nose, choking off her airway to

get her to gag, and trying to force her to throw up. When all of his attempts failed, he

laid her back in her crib and fell asleep in Allen and Marnell's bed.

       Kruzik told the sergeant that he consumed alcohol at a bar before arriving at Allen

and Marnell's house. In total, he drank eight 16-ounce beers, some Goldschläger, and a

shot of bourbon. After the sergeant expressed his doubts regarding Kruzik's story that he

fell onto A.A., Kruzik admitted he was getting mad when she would not take toys or

drink water, and he struck A.A. on her head four or five times. He explained that she fell

to the ground after each blow and he propped her back up.

Defense Evidence

       Kruzik testified in his defense mostly consistently with his interview. He testified

that on the night of November 19, 2010, when he left the bar, he felt intoxicated because

his "balance was off" and "vision was shaky at best." At approximately 10:30 p.m., when

he got to Allen and Marnell's house to babysit A.A., he still felt "pretty intoxicated." He

testified that he had injected anabolic steroids from July 2010 through most of October

2010. He stopped injecting the steroids about three or four weeks before A.A.'s death but



                                              4
continued to take oral steroids and other illegal substances. He claimed the steroids

caused him to have a short temper.

       In his defense to the second degree murder charge, Kruzik claimed that he had not

actually formed either express malice or implied malice because he was intoxicated

and/or had mental impairments. He presented defense expert Veronica Thomas, a

forensic psychologist, who evaluated Kruzik and diagnosed him with alcoholic

dependence disorder, body dysmorphic disorder, and borderline personality disorder. Dr.

Thomas explained that alcohol dependence refers to someone who has a physiological

dependence on alcohol in order to mediate and smooth out their moods. Body

dysmorphic disorder refers to someone who has a distorted and sometimes irrational

perception about himself. A person with borderline personality disorder has emotional

instability and may have low self-esteem, depression, and anxiety, along with

problematic interpersonal relationships.

       Dr. Thomas stated that alcohol impairs judgment and volitional behavior. She

explained that a certain level of intoxication can affect one's ability to form intent and

mental capacity in general. It would affect sorting out data and making appropriate

assessments on how to use that data. Dr. Thomas noted that steroids can also impact

one's mood, behavior, and judgment.




                                              5
Jury Instructions

       The trial court instructed the jury with CALCRIM No. 220,2 which articulated the

presumption of innocence and its requirement that the People prove a defendant guilty

beyond a reasonable doubt. The court also instructed the jury with CALCRIM No. 520,3

which explained that second degree murder is the unlawful commission of an act that

caused the death of another person committed with malice aforethought, and that malice

aforethought was express or implied.

       The court also instructed the jury with CALCRIM No. 5804 as to involuntary and

voluntary manslaughter. It gave the jury direction about the relationship between second


2       The court read CALCRIM No. 220 in part as follows: "A defendant in a criminal
case is presumed to be innocent. This presumption requires that the People prove a
defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove
something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a
reasonable doubt is proof that leaves you with an abiding conviction that the charge is
true. The evidence need not eliminate all possible doubt because everything in life is
open to some possible or imaginary doubt. [¶] In deciding whether the People have
proved their case beyond a reasonable doubt, you must impartially compare and consider
all the evidence that was received throughout the entire trial. Unless the evidence proves
the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you
must find him not guilty."

3      The court read CALCRIM No. 520 in part as follows: "To prove that the
defendant is guilty of [murder], the People must prove that: [¶] 1. The defendant
committed an act that caused the death of another person; and 2. When the defendant
acted, he had a state of mind called malice aforethought. [¶] . . . [¶] If you find the
defendant guilty of murder, it is murder of the second degree."

4      The court read CALCRIM No. 580 as follows: "When a person commits an
unlawful killing but does not intend to kill and does not act with conscious disregard for
human life, then the crime is involuntary manslaughter. [¶] The difference between
other homicide offenses and involuntary manslaughter depends on whether the person
was aware of the risk to life that his or her actions created and consciously disregarded
                                             6
degree murder, voluntary manslaughter, and involuntary manslaughter, and how the jury

should consider these three types of homicides with CALCRIM No. 642 as follows:

       "You will be given verdict forms for guilty and not guilty of second degree

murder, voluntary manslaughter, and involuntary manslaughter. [¶] You may consider

these different kinds of homicide in whatever order you wish, but I can accept a verdict

of guilty or not guilty of voluntary manslaughter or involuntary manslaughter only if all

of you have found the defendant not guilty of second degree murder. [¶] As with all the

charges in this case, to return a verdict of guilty or not guilty on a count, you must all

agree on that decision. [¶] Follow these directions before you give me any completed

and signed final verdict forms. Return the unused verdict forms to me, unsigned. [¶] . . .

If all of you agree that the People have proved beyond a reasonable doubt that the

defendant is guilty of second degree murder, complete and sign that verdict form. Do not

complete or sign any other verdict forms for the homicide, count 1. [¶] If all of you

cannot agree whether the defendant is guilty of second degree murder, inform me that

you cannot reach an agreement and do not complete or sign any verdict forms. [¶] . . . If

that risk. An unlawful killing caused by a willful act done with full knowledge and
awareness that the person is endangering the life of another, and done in conscious
disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting
from a willful act committed without intent to kill and without conscious disregard of the
risk to human life is involuntary manslaughter. [¶] The defendant committed involuntary
manslaughter if: [¶] 1. The defendant committed a crime; [¶] 2. The defendant
committed the crime with criminal negligence; and [¶] 3. The defendant's acts
unlawfully caused the death of another person. [¶] . . . [¶] In order to prove murder or
voluntary manslaughter, the People have the burden of proving beyond a reasonable
doubt that the defendant acted with intent to kill or with conscious disregard for human
life. If the People have not met either of these burdens, you must find the defendant not
guilty of murder and not guilty of voluntary manslaughter."

                                              7
all of you agree that the defendant is not guilty of second degree murder, complete and

sign the form for not guilty of second degree murder. [¶] If all of you agree on a verdict

of guilty or not guilty of voluntary manslaughter or involuntary manslaughter, complete

and sign the appropriate verdict form for each charge on which you agree. Do not

complete or sign any other verdict forms. You may not find the defendant guilty of both

voluntary and involuntary manslaughter. [¶] If you cannot reach agreement as to

voluntary manslaughter or involuntary manslaughter, inform me of your disagreement.

Do not complete or sign any verdict form for any charge on which you cannot reach

agreement."

       During deliberations, the jury asked the trial court whether the implied malice

theory only applied to the period during which the beating occurred, or whether it

extended through the night and into the next morning. In response, the court referred the

jury to CALCRIM No. 252.5

                                      DISCUSSION

       Kruzik contends the trial court erred when it failed to instruct the jury sua sponte

with instructions such as CALJIC Nos. 8.72 or 17.10, which would have told the jurors

that if they were convinced that A.A.'s killing was unlawful, but had a reasonable doubt

about whether the crime was murder or manslaughter, they had to give Kruzik the benefit


5      CALCRIM No. 252 reads in part: "The following crime requires a specific intent
or mental state: Murder, as charged in count 1. For you to find a person guilty of this
crime, that person must not only intentionally commit the prohibited act, but must do so
with a specific intent and mental state. The act and the specific intent and mental state
required are explained in the instruction for that crime."

                                             8
of the doubt and return a verdict finding him guilty of manslaughter rather than murder.

Pointing to the evidence of his mental impairments, as well as the effect his alcohol and

steroid use had on his temper, Kruzik maintains there was sufficient evidence to support a

finding that he had not actually formed malice aforethought, and was only guilty of the

lesser offense of involuntary manslaughter, thus warranting such an instruction. He also

argues that the jury's question shows this was a "close case" as to whether he should be

found guilty of murder or involuntary manslaughter, and that his conviction must be

reversed because it is reasonably probable that a more favorable result would have been

reached but for the trial court's instructional error.

       The People counter on two grounds: (1) Kruzik forfeited his contentions, and (2)

the trial court's instructions were proper because CALCRIM No. 580, like CALJIC No.

8.72, instructs the jury as to the People's burden of proof beyond a reasonable doubt.

                                         I. Forfeiture

       We reject the People's cursory forfeiture argument. They concede that absent an

objection, a defendant may challenge on appeal an instruction that affects his or her

"substantial rights." (§ 1259.) However, the People rely on the principle that "a party

may not complain on appeal that an instruction correct in law and responsive to the

evidence was too general or incomplete unless the party has requested appropriate

clarifying or amplifying language." (People v. Andrews (1989) 49 Cal.3d 200, 218,

overruled on other grounds in People v. Trevino (2001) 26 Cal.4th 237, 243-244.) They

point out Kruzik did not object to the court's instruction with CALCRIM No. 580 or



                                                9
argue it was incorrect in law, and he did not request the court to give CALJIC No. 8.72 or

any other "clarifying" instructional language.

       We disagree with the People's framing of Kruzik's claims. Kruzik's appeal is

premised on error under People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry), that is,

that the court's instructions failed to tell the jury that if it entertained a reasonable doubt

whether a greater or lesser offense was committed, it had to convict him of the lesser

offense. (Id. at p. 555.) If Kruzik were correct in this contention (though we conclude

below he is not), Dewberry error would affect his substantial rights. Under these

circumstances, an objection is not required. (See, e.g., People v. Cleveland (2004) 32

Cal.4th 704, 749.) Therefore, even absent an objection, Kruzik has not waived the right

to appeal the alleged instructional error.

                               II. Claim of Instructional Error

A. Applicable Law

       In a criminal trial, the court must give instructions to the jury sua sponte on the

general principles of the law relevant to the issues raised by the evidence, that is,

" ' "those principles of law commonly or closely and openly connected with the facts of

the case before the court." ' " (People v. Michaels (2002) 28 Cal.4th 486, 529-530, italics

omitted; see also People v. Whalen (2013) 56 Cal.4th 1, 68; People v. Barajas (2004) 120

Cal.App.4th 787, 791.) But the court has no duty to give repetitious instructions (People

v. Fuentes (2009) 171 Cal.App.4th 1133, 1138) and the correctness of the jury

instructions given " ' "is to be determined from the entire charge of the court, not from a

consideration of parts of an instruction or from a particular instruction." ' " (People v.

                                               10
Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Solomon (2010) 49 Cal.4th 792,

822; see Barajas, at p. 791.) When a defendant challenges instructions as being subject

to the jury's erroneous interpretation, he must demonstrate a reasonable likelihood that

the jury understood the instructions in the way asserted by the defendant. (People v.

Solomon, at p. 822.)

       Section 1097 provides in part: "When it appears that the defendant has committed

a[n] . . . offense, . . . and there is reasonable ground of doubt in which of two or more

degrees of the crime . . . he is guilty, he can be convicted of the lowest of such degrees

only." In Dewberry, the court addressed this section, stating it "presupposes that the jury

has concluded that the defendant is guilty of some . . . offense embraced within the

pleadings but is in doubt as to the degree of the offense proved. . . . [T]he words

'offense' and 'degrees' [in section 1097] . . . refer to all the degrees of criminality . . .

involved in a criminal act. . . . [¶] . . . [W]hether reasonable doubt exists as between

degrees of the same offense or as between the inclusive and included offense, the jury can

only convict of the crime whose elements have been proved beyond a reasonable doubt."

(Dewberry, supra, 51 Cal.2d at pp. 555-556.)

       In Dewberry, a murder case, the trial court instructed the jury that there were two

degrees of murder and that if the jurors were convinced beyond a reasonable doubt the

defendant had committed the crime of murder but entertained a reasonable doubt as to the

degree, they should give him the benefit of the doubt and find him guilty of second

degree murder. (Dewberry, supra, 51 Cal.2d at p. 554.) The court also instructed the

jury that if there was any doubt as to whether the killing was manslaughter or justifiable

                                                11
homicide, the defendant was to be acquitted. (Ibid.) The court refused a general defense

instruction that would have told the jury that if it found the defendant was " 'guilty of an

offense included within the charge . . . , but entertain a reasonable doubt as to the degree

of the crime of which he is guilty, it is your duty to convict him only of the lesser

offense.' " (Ibid.) The defendant argued that since the instructions on manslaughter were

not accompanied by that further instruction, the jury was given the impression that the

rule requiring a finding of guilt of the lesser offense applied only as between degrees of

murder. (Id. at p. 555.)

       The California Supreme Court agreed, explaining that the defendant's proposed

instruction went to the defense of reasonable doubt of defendant's guilt of second degree

murder, was responsive to issues raised by the evidence, and was essential to cure the

misleading effect of its absence in light of the other instructions given. (Dewberry,

supra, 51 Cal.2d at p. 557.) "The failure of the trial court to instruct on the effect of a

reasonable doubt as between any of the included offenses, when it had instructed as to the

effect of such doubt as between the two highest offenses, and as between the lowest

offense and justifiable homicide, left the instructions with the clearly erroneous

implication that the rule requiring a finding of guilt of the lesser offense applied only as

between first and second degree murder." (Ibid.) The case was close on the facts; there

was evidence equally warranting a finding that the offense was manslaughter, and thus

the error was prejudicial. (Id. at pp. 557, 558.)

       In People v. Musselwhite, supra, 17 Cal.4th 1216, the California Supreme Court

rejected a claim of Dewberry error where the defendant contended the trial court erred by

                                              12
failing to specifically instruct the jury that if it had a reasonable doubt whether he was

guilty of attempted murder, but believed he was guilty of assault with a deadly weapon,

the jury should give him the benefit of the doubt and find him guilty of the lesser offense.

(Musselwhite, at p. 1261.) The defendant argued the omission confused the jurors

because the trial court gave "benefit of the doubt" instructions for murder and

manslaughter charges. (Ibid.) The Supreme Court disagreed. It pointed out the court

had given the jury "generally applicable instructions governing its use of the reasonable

doubt standard," which required the jury to find the defendant guilty of lesser included or

related offenses where it had reasonable doubt as to any included or related offenses or

degrees. (Id. at p. 1262.) Though the trial court had not instructed the jury specifically

with respect to attempted murder and assault with a deadly weapon, that did not bring the

case within Dewberry because the trial court gave another instruction that "fulfilled the

same function" as the defendant's proffered instruction, that is, it obligated the jury to

adopt an interpretation of the evidence pointing to the absence of specific intent where

the evidence was susceptible to two reasonable interpretations. (Musselwhite, at pp.

1262-1263.)

       In People v. Barajas, supra, 120 Cal.App.4th 787, the appellate court rejected the

defendant's claim that the trial court's failure to instruct the jury with CALJIC No. 8.72

was prejudicial error under Dewberry. (Barajas, 120 Cal.App.4th at p. 794.) It held

Dewberry was satisfied by the court's instruction: " '[I]f you . . . are not satisfied beyond

a reasonable doubt that the defendant is guilty of the crime charged, you may,

nevertheless, convict on a lesser crime, if you are convinced beyond a reasonable doubt

                                              13
that the defendant is guilty of the lesser crime. (Barajas, at p. 792.) As to this instruction

(CALJIC No. 17.10), the court in Barajas stated, "[W]hen its blanks are filled in for

murder and manslaughter, [it] is logically equivalent to CALJIC No. 8.72. If a jury is

convinced beyond a reasonable doubt that a defendant is guilty of either a greater or

lesser offense, this can only be because it has a reasonable doubt about elements of the

greater offense and no reasonable doubt about any elements of the lesser. CALJIC No.

8.72 does the same." (Barajas, 120 Cal.App.4th at p. 793.)

B. Analysis

       None of the CALCRIM instructions provided to the jury stated the law using the

same "benefit of the doubt" language as CALJIC No. 8.72, nor did they specifically

describe the circumstance of the jury having a reasonable doubt between greater and

lesser offenses. But jury instructions require no particular form. (See People v. Fiu

(2008) 165 Cal.App.4th 360, 370.) And the absence of such language does not result in

Dewberry error. As the foregoing authorities instruct, we review the entirety of the jury

instructions to ascertain whether the jury was properly advised of the principles expressed

in Dewberry: in short, that the prosecution must prove guilt beyond a reasonable doubt.

(Dewberry, supra, 51 Cal.2d at p. 556.) More specifically in this context, Dewberry is

satisfied when the jury is instructed that if it finds the prosecution has not proven the

elements of the greater offense beyond a reasonable doubt, then the defendant can be

found guilty of the lesser offense if that offense has been proven beyond a reasonable

doubt. (See People v. Barajas, supra, 120 Cal.App.4th at p. 794.)



                                             14
       Applying these standards, we reject Kruzik's claim that the jury was not given any

instruction that explained the effect of reasonable doubt on the choice between murder

and manslaughter. Rather, the trial court gave the jury generally applicable instructions

that made clear the burden of proof required to establish either second degree murder or

the lesser included offenses of voluntary and involuntary manslaughter, and directed the

jury what to do if it entertained reasonable doubts as to Kruzik's guilt as to second degree

murder.

       As stated above, the trial court instructed the jury on second degree murder,

voluntary manslaughter, and involuntary manslaughter. Before instructing the jury as to

three homicide crimes and their respective elements, the court explained the reasonable

doubt standard, telling the jury the People had to prove Kruzik guilty beyond a

reasonable doubt, and he was entitled to an acquittal if the evidence did not prove him

guilty beyond a reasonable doubt. It specifically told the jury that to prove murder or

voluntary manslaughter, as opposed to involuntary manslaughter, the prosecution had

"the burden of proving beyond a reasonable doubt that the defendant acted with an intent

to kill or with a conscious disregard for human life. If the People have not met either of

these burdens, you must find the defendant not guilty of murder and not guilty of

voluntary manslaughter." The jurors were aware of their obligation to acquit Kruzik of

second degree murder or voluntary manslaughter if they did not believe, beyond a

reasonable doubt, that he had the requisite intent.

       Additionally, in connection with the verdict forms, the court explained to the jury

it "can accept a verdict of guilty or not guilty of voluntary manslaughter or involuntary

                                             15
manslaughter only if [the jury has] found the defendant not guilty of second degree

murder." CALCRIM No. 642, like CALJIC No. 17.10 in Barajas, told the jury if it

found Kruzik not guilty of the greater crime (second degree murder), it could find him

guilty of manslaughter. We observe that the drafters intended CALCRIM No. 642 to

satisfy Dewberry in homicide cases as this one, in which second degree murder is the

greatest offense and one or more lesser offenses is submitted to the jury. (Bench Notes to

CALCRIM No. 642 (2014 ed.) p. 405.)

       Thus, the instructions given to the jury taken as a whole adequately covered

defendant's point. The combined CALCRIM instructions6 did not leave misleading

impressions nor did they restrict the jury's ability to consider the lesser offense of

manslaughter, and they provided the jury with sufficient information to comply with

Dewberry's principles. There was no instructional error.

                       III. Kruzik Has Not Demonstrated Prejudice

       Even if Kruzik was somehow able to establish Dewberry error, we would

conclude it was harmless. We look to the standard set forth in People v. Watson (1956)

46 Cal.2d 818, 836: whether it is reasonably probable that, in the absence of the error, the

result would have been more favorable to the defendant. (Dewberry, supra, 51 Cal.2d at

p. 558; see also People v. Crone (1997) 54 Cal.App.4th 71, 78.) Here, there is no

indication the jury entertained reasonable doubt as to whether Kruzik committed second


6      We agree that CALJIC instructions do not serve as a benchmark by which to
adjudicate the correctness of CALCRIM instructions. (See People v. Lawrence (2009)
177 Cal.App.4th 547, 554.)

                                              16
degree murder, and the evidence is abundant to support its verdict. The autopsy of A.A.'s

body revealed evidence of three impacts to the head. The forensic pathologist opined that

A.A.'s death was a homicide caused by blunt force trauma to the head. Kruzik admitted

to striking A.A. four times to her head, causing her to lose consciousness after the final

blow.

        At trial, the jury considered Kruzik's defenses and found beyond a reasonable

doubt that he acted with malice aforethought. Kruzik does not explain how the jury's

question concerning implied malice reflects confusion about that matter, and we conclude

it does not. We conclude that even if the jury had been instructed with CALJIC No. 8.72

or some other similar instruction, it is not reasonably probable it would have convicted

Kruzik of the lesser offense of manslaughter.

                                      DISPOSITION

        The judgment is affirmed.




                                                                             O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


IRION, J.




                                             17
