Filed 8/18/20 P. v. Arce CA2/4
            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR


 THE PEOPLE,                                                             B296720
                                                                         (Los Angeles County
           Plaintiff and Respondent,                                      Super. Ct. No. NA104936)

           v.

 IRVIN ARCE,

           Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles
County, Jesse I. Rodriguez, Judge. Affirmed.
         Cynthia L. Barnes, 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 and Steven D.
Matthews, Supervising Deputy Attorneys General, and Ryan M. Smith,
Deputy Attorney General, for Plaintiff and Respondent.
     A jury convicted appellant Irvin Arce of two counts of attempted
murder (Pen. Code, §§ 664/187, subd. (a)),1 one count of cutting a utility
line (§ 591), and one count of disobeying a domestic relations court order
(§ 273.6, subd. (a)). On the first count of attempted murder, the jury
found true the allegation that defendant attempted to commit a willful,
deliberate, and premeditated murder (§ 664, subd. (a)). On both counts
of attempted murder, the jury found true the allegations that defendant
personally used a deadly and dangerous weapon, to wit, a knife, and
personally inflicted great bodily injury (§§ 12022, subd. (b)(1), 12022.7,
subd. (a)). In a bifurcated proceeding, defendant admitted he had been
convicted of robbery as a minor, which constituted a prior serious and/or
violent felony (§§ 667, subd. (d), 1170.12, subd, (b)). He was sentenced
to a prison term of 28 years four months, plus 14 years to life.
     On appeal, defendant contends there is insufficient evidence to
support the finding that he intended to kill both victims on the
attempted murder counts, and that he premeditated and deliberated
the murder of his first victim. He also contends the court committed
error by failing to instruct sua sponte on attempted voluntary
manslaughter under a theory of imperfect self-defense, and by denying
his motions for a mistrial and new trial. Finally, defendant contends
the court violated his constitutional rights by using a prior juvenile
adjudication to enhance his criminal sentence. We reject defendant’s
contentions and affirm the judgment.



1    Unspecified references to statutes are to the Penal Code.


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                             BACKGROUND
1.    Charges in Operative Information
      In the first amended information, defendant was charged with the
attempted murder of Rosa Briones (Rosa) (§ 664/187, subd. (a), count 1)
and Martin Aaron Espinoza (Aaron) (§ 664/187, subd. (a), count 2). The
information alleged that both attempted murders were committed
willfully, deliberately, and with premeditation (§ 664, subd. (a)), that
defendant personally used a deadly weapon, to wit, a knife (§ 12022,
subd. (b)(1)), and that defendant personally inflicted great bodily injury
(§ 12022.7, subd. (a)). Defendant was also charged with cutting a utility
line (§ 591, count 3) and disobeying a domestic relations court order
(§ 273.6, subd. (a), count 4).
      The information further alleged that in 2000, when defendant was
17 years old, defendant was convicted of robbery (§ 211), which
constituted a serious and/or violent felony (§§ 667, subd. (d), 1170.12,
subd. (b)).


2.    Prosecution Evidence
      Sandra Briones (Sandra) testified that despite the existence of a
10-year restraining order protecting her from defendant, she allowed
defendant to live with her in an apartment with their two children and
her mother. Amidst ongoing conflict, Sandra kicked defendant out of
the apartment on the morning of August 14, 2016. After leaving for the
day, defendant returned around 10:00 p.m. and demanded that Sandra
come outside to talk with him. Sandra refused, and defendant walked

                                     3
down the apartment stairs, at which point Sandra realized the
electricity to the apartment had been cut off.2 When defendant
returned to the apartment door, he told Sandra that he would not turn
on the electricity unless she talked with him outside. When Sandra
again refused, defendant left, telling Sandra “now you have something
coming.”
     Sandra’s mother called her sister, Rosa, to try to get the electricity
reconnected. Rosa testified that she and her boyfriend, Aaron, drove to
the apartment and parked her car across an adjacent alleyway. The
couple walked toward the electrical panel located in the alleyway near
the rear of the apartment.
     Suddenly, Rosa saw a car coming at her “fast.” She jumped back
inside a gated area of the apartment and watched as defendant drove
his truck into the alleyway. Rosa testified that defendant yelled
through his car window to “get your fucken’ sister down here.” After
Rosa responded that she did not “think it was a good time,” she heard
defendant and Aaron “bickering back and forth” about the electricity.
Fearing the situation would escalate, Rosa stepped behind defendant’s
truck and dialed 911.
     While Rosa was describing defendant’s truck to the 911 operator,
defendant drove down the alleyway. Rosa watched defendant get out of
his truck and climb over a fence. He pulled something “as if he was
turning [the electricity] on.” Then defendant got back into his truck.

2     According to Sandra, defendant had previously shut off the power to
the apartment when he got upset with her.


                                     4
     Rosa followed Aaron as he walked toward her car. While she was
walking, Rosa looked over and saw that defendant had backed up his
truck so that it was next to her. After passing by the driver’s side door,
Rosa turned around and realized defendant had exited the truck.
Moments after Rosa turned again to walk away, she felt what she
thought was a punch to her mid back, followed by more punches “going
over me and on me.”
     Aaron heard Rosa yell his name, and he ran back to intervene.
While Aaron struggled with defendant, Rosa managed to escape toward
the rear area of defendant’s truck. She looked back for Aaron, who was
hunched over and reaching for his arm while defendant continued to
swing at him. Rosa quickly realized defendant’s “motions weren’t
punches, but [were] stabbing motion[s].” According to Rosa, when she
reached for her back, “my whole hand was completely full of blood.”
Rosa ran to Aaron and pulled him away from defendant, after which
Aaron lost consciousness. Still on the phone with the 911 operator,
Rosa said that she and Aaron had been stabbed.
     Meanwhile, defendant got back into his truck and drove away.
Three days later, his abandoned truck and wallet were located by the
Long Beach Police Department.3
     Rosa was hospitalized for stab wounds to her mid back, right
torso, and upper extremities. Though the doctor who testified about
Rosa’s condition stated that he could not recall the specific number of

3    Defendant fled the state. In 2018, he was extradited back to California
from Oregon.


                                     5
stab wounds to her body because it was “too many to count,” the doctor
noted that the stab wounds to her back caused a collapsed lung and
liver damage. Aaron was also hospitalized; he suffered 17 stab wounds
and a broken left arm. Because Aaron’s blood loss endangered his life,
he received massive blood transfusions to replace his entire blood
volume.


3.   Defense Evidence
     Defendant testified that on August 13, 2016, he woke up in the
apartment building garage (where he had been living for one month)4
and saw that his belongings had been scattered on the apartment
complex floor. After collecting his clothes, defendant knocked on the
apartment door. When Sandra told defendant that she no longer
wanted him there, defendant left.
     Sometime after 10:00 p.m., defendant drove his truck back to the
apartment garage. When he arrived, Rosa and Aaron were already in
the alleyway; they began to yell at him about the electricity. Defendant
told Rosa that he would fix the problem even though he had not turned
off the electricity. Defendant got out of his truck and changed a fuse in
the electrical panel. Aaron followed defendant and told him that “he
was there to handle me and take care of me.”
     Aaron continued to “bark” as defendant walked back to his truck,
and defendant told Aaron he “need[ed] to just back off.” When

4     Defendant testified that he slept in the garage after Sandra had
accused him of infidelity.


                                      6
defendant got into his truck, Aaron struck him and told him to come out
of the truck.
     According to defendant, he got out of the truck and “exchanged
blows” with Aaron. Then, “immediately [Rosa] jumps in. And now I got
both of them on me. He has me by the throat, she has me by the hair.
And, as they said, there was minimal space. . . . And at that point I felt
both of them on me. And I always carry my work knife, a pocket knife,
and I did take it out. And I started strucking [sic] them.” Because
Aaron was strangling defendant while defendant was “going down,”
defendant believed his life was in danger. Aaron refused to let go of
defendant even after defendant stabbed him with his knife. According
to defendant, when Aaron finally let go of him, Rosa “falls into place.
And that’s when she got struck. I didn’t realize she got struck also.”
When both Rosa and Aaron let go of defendant, he stopped immediately,
got into his truck, and drove away “[a]s far as I could” go.


4.   Verdict and Sentence
     On count 1, attempted murder of Rosa, the jury found defendant
guilty and found that the attempted murder was committed willfully,
deliberately, and with premeditation. On count 2, attempted murder of
Aaron, the jury found defendant guilty of attempted murder and found
not true the allegation that the attempted murder was premeditated.
On both counts, the jury found defendant had personally used a deadly
weapon and personally inflicted great bodily injury.
     On counts 3 and 4 (cutting a utility line and disobeying a domestic
relations court order), the jury found defendant guilty.

                                     7
      In a bifurcated proceeding, defendant admitted he had suffered a
prior serious and/or violent felony (§§ 667, subd. (d), 1170.12, subd. (b))
for a robbery conviction in 2000 while he was 17 years old.
      The court denied defendant’s motion to strike his prior juvenile
robbery conviction (see People v. Superior Court (Romero) (1996) 13
Cal.4th 497), and sentenced him to an overall determinate term of 28
years four months imprisonment, plus 14 years to life in prison.5 The
court imposed various fines, fees, and assessments.


                               DISCUSSION
1.    Sufficiency of the Evidence to Sustain the Attempted Murder
      Counts

      Defendant contends there is insufficient evidence to support the
findings that he intended to kill both victims and that he premeditated
the murder of Rosa. “‘When the sufficiency of the evidence to support a
conviction is challenged on appeal, we review the entire record in the
light most favorable to the judgment to determine whether it contains
evidence that is reasonable, credible, and of solid value from which a
reasonable trier of fact could find the defendant guilty beyond a



5     Defendant was sentenced to 22 total years on count 2, the principal
determinate term (the upper term of 9 years, multiplied by 2 for the prior
strike, plus 4 years for the great bodily injury and personal use of a deadly
weapon enhancements); 1 year 4 months on count 3 (one third the middle
term of 2 years multiplied by 2 for the prior strike); 1 year on count 4; and 14
years to life (the middle term of 7 years to life multiplied by 2 for the prior
strike) plus a determinate term of 4 years for the great bodily injury and
personal use of a deadly weapon enhancements.

                                       8
reasonable doubt.’ [Citation.]” (People v. Gomez (2018) 6 Cal.5th 243,
278.) We presume in support of the judgment “‘“the existence of every
fact the jury could reasonably have deduced from the evidence.”’
[Citation.]” (Ibid.) We do not resolve credibility issues or evidentiary
conflicts; the relevant inquiry is whether, in light of all the evidence, a
reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. (Ibid.)
     “‘Attempted murder requires the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing the
intended killing.’ [Citations.] Hence, in order for defendant to be
convicted of the attempted murder of [either victim], the prosecution
had to prove he acted with specific intent to kill that victim. [Citation.]”
(People v. Smith (2005) 37 Cal.4th 733, 739.) “Because direct evidence
of a defendant’s intent rarely exists, intent may be inferred from the
circumstances of the crime and the defendant’s acts. [Citation.]”
(People v. Sanchez (2016) 63 Cal.4th 411, 457 (Sanchez).)
     An attempt to commit murder that is willful, deliberate, and
premeditated is punished by a greater term of imprisonment than an
unpremeditated attempted murder. (People v. Favor (2012) 54 Cal.4th
868, 876–877; see § 664, subd. (a).) “Deliberation” refers to “‘careful
weighing of considerations in forming a course of action;
“premeditation” means thought over in advance. [Citations.]’
[Citation.]” (People v. Solomon (2010) 49 Cal.4th 792, 812.) “‘“The
process of premeditation and deliberation does not require any extended
period of time. ‘The true test is not the duration of time as much as it is



                                     9
the extent of the reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly . . . .’
[Citations.]” [Citation.]’” (People v. Houston (2012) 54 Cal.4th 1186,
1216.)
     A reviewing court typically considers three categories of evidence
when determining whether a finding of premeditation and deliberation
is adequately supported: “(1) evidence of planning activity prior to the
killing, (2) evidence of the defendant’s prior relationship with the victim
from which the jury could reasonably infer a motive to kill, and
(3) evidence that the manner in which the defendant carried out the
killing ‘was so particular and exacting that the defendant must have
intentionally killed according to a “preconceived design” to take his
victim’s life in a particular way for a “reason” which the jury can
reasonably infer from facts of type (1) or (2).’” (People v. Brooks (2017) 3
Cal.5th 1, 58–59, quoting People v. Anderson (1968) 70 Cal.2d 15, 26–
27.) These factors serve as an aid for reviewing courts “in assessing
whether the evidence is supportive of an inference that the killing was
the result of preexisting reflection and weighing of considerations
rather than mere unconsidered or rash impulse.” (People v. Perez
(1992) 2 Cal.4th 1117, 1125 (Perez).)
     Here, the evidence is sufficient to support the jury’s finding that
defendant attempted to commit a premeditated murder of Rosa. The
prosecution’s evidence supports a finding of planning activity. While
Rosa was walking, defendant backed up his truck so that it was next to
her, got out when she passed, and began stabbing her in the back from
behind. The evidence also supports a finding of motive: defendant was

                                    10
angry after Rosa had disregarded his command to summon her sister
outside so that he could continue his argument over his living situation.
The manner with which defendant attacked Rosa—stabbing her in the
back multiple times and continuing to stab her on the ground—suggests
that he was stabbing her in a manner intended to kill her. In sum, the
evidence demonstrates that defendant considered his course of conduct
and decided to murder Rosa. (Perez, supra, 2 Cal.4th at p. 1125.)
      Substantial evidence also supports the jury’s finding that
defendant intended to kill Aaron. He stabbed Aaron 17 times as Aaron
tried to help Rosa. Without mass blood transfusions, Aaron would have
died from his wounds. Following his attack, defendant fled the scene in
his truck. (See People v. Moon (2005) 37 Cal.4th 1, 28 [flight from the
crime scene can evidence intent to kill].)6 The foregoing circumstances
support the finding that defendant intended to kill Aaron. (Sanchez,
supra, 63 Cal.4th at p. 457.)


2.    The Failure to Instruct on Attempted Voluntary Manslaughter
      Based on Imperfect Self-Defense

      With regard to the attempted murder counts, the jury was
instructed on the defense of reasonable self-defense,7 as well as the


6    The jury was instructed that it could consider defendant’s flight to
show that he was aware of his guilt.

7     The jury was instructed on the following self-defense CALCRIM
instructions: the right to self-defense (No. 3470), mutual combat or initial
aggressor (No. 3471), the right of self-defense may not be contrived (No.
3472), and the right to use force ends when danger no longer exists or the

                                      11
lesser included offense of attempted voluntary manslaughter based on a
sudden quarrel or heat of passion. Defendant did not request, and the
trial court did not give, an instruction on attempted voluntary
manslaughter based on imperfect self-defense. Defendant maintains
that the trial’s failure to instruct the jury on imperfect self-defense
constituted reversible error.
  Attempted voluntary manslaughter is a lesser included offense of
attempted murder. (People v. Prunty (2015) 62 Cal.4th 59, 69.)
Attempted voluntary manslaughter based on imperfect self-defense, one
of two types of attempted voluntary manslaughter, arises when the
defendant attempts to kill someone in the unreasonable but good faith
belief in having to act in self-defense in the face of imminent death or
great bodily injury. (People v. McCoy (2001) 25 Cal.4th 1111, 1116;
People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.)
     A trial court must instruct sua sponte on all theories of a lesser
included offense that are supported by substantial evidence, but not
those without evidentiary support. (People v. Huggins (2006) 38 Cal.4th
175, 215.) “The testimony of a single witness, including the defendant,
can constitute substantial evidence requiring the court to instruct on its
own initiative.” (People v. Lewis (2001) 25 Cal.4th 610, 646.)
     Defendant contends that his testimony was sufficient to support
an instruction on imperfect self-defense. We need not address this
contention, as we conclude any error was harmless. (See People v.



attacker is disabled (No. 3474). Defendant takes no issue with the issuance
or scope of the foregoing instructions.

                                     12
Breverman (1998) 19 Cal.4th 142, 178 (Breverman) [in a noncapital
case, error in failing to instruct sua sponte on lesser offenses is
reviewed for prejudice exclusively under People v. Watson (1956) 46
Cal.2d 818, 836 (Watson)]; see also People v. Earp (1999) 20 Cal.4th 826,
886 [reviewing court need not decide whether substantial evidence
supported instructions on lesser included offenses of second degree
murder and involuntary manslaughter where any instructional error
would necessarily be harmless].)
     In defendant’s version of events, Aaron was the initial aggressor
in an exchange of blows, after which Rosa joined in the fight. Aaron
had defendant by the throat, and Rosa had him by the hair. Believing
his life was in danger, defendant retrieved his pocket knife and began
stabbing them, though he claimed he did not know Rosa had been
stabbed until after Aaron released him.
     Thus, the key to defendant’s theory of imperfect self-defense was
that Aaron attacked defendant first, followed by Rosa, and that
defendant stabbed them both in the resulting altercation. However, the
jury found beyond a reasonable doubt that defendant attempted to
commit a willful, deliberate, and premeditated murder of Rosa. In
making such finding, the jury necessarily resolved the factual
discrepancies related to the imperfect self-defense theory against
defendant. That is, by finding defendant had stabbed Rosa after
deliberating and premeditating his course of action, the jury necessarily
found that defendant initiated the physical assault against her. In
doing so, the jury necessarily rejected any version of events in which
defendant stabbed the victims in an actual but unreasonable belief that

                                     13
his life was in danger. (See People v. Seaton (2001) 26 Cal.4th 598, 664;
In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 [imperfect self-defense
cannot be invoked when defendant initiates physical assault or commits
a felony which created circumstances under which his adversary’s
attack was legally justified].) Indeed, the jury rejected all aspects of
defendant’s version, convicting him on count 3 of cutting the utility line,
even though he testified he had not done so. (See People v. Rogers
(2006) 39 Cal.4th 826, 870 [courts may consider the relative strength of
evidence support judgment as opposed to the comparative weakness of
evidence supporting a different outcome].) In short, it is not reasonably
probable that, had the trial court instructed on imperfect self-defense, a
different verdict on the attempted murder counts would have been
reached. (Breverman, supra, 19 Cal.4th at pp. 165, 178; Watson, supra,
46 Cal.2d at p. 836.)


3.   Denying Defendant’s Motions for a Mistrial and New Trial
     Defendant contends the trial court’s denial of his motions for a
mistrial and for a new trial—both of which were based on conduct by
Rosa and Sandra during the jury’s requested playback of Rosa’s 911
phone call—constituted incurable error. We find no error in the court’s
rulings.


A.   Relevant Proceedings
     During deliberations, the jury asked for a playback of Rosa’s 911
phone call. While the audiotape was played in the courtroom, defense
counsel interjected and stated that Rosa was sitting in the audience

                                    14
“shedding tears in front of the jury.” After a brief pause, the court
completed playback of the audiotape and ordered the jury to return to
deliberations.
      Outside the presence of the jury, the court informed the parties
that though it had heard Rosa let out a cry during playback, her crying
stopped after defense counsel intervened. The court did not hear any
other noise after resuming playback.
      Defense counsel argued that the jury was tainted by Rosa’s
conduct and Sandra’s “extreme” display of emotion during playback.
The court replied that it did not see Sandra show any emotion, and that
it did not believe the jury was tainted. Defense counsel moved for a
mistrial or, in the alternative, further admonishment. The prosecution
noted the jury had already received an instruction that it could not
consider anything other than the evidence presented at trial.8
      The court denied the motion for a mistrial but agreed to further
admonish the jury. After recalling the jurors, the court stated that the
jury “may have heard or made an observation about a cry—I am not
sure whether you did or not but I am bringing this to your attention—if
you did you are to disregard it. You are not to consider that for any
purpose. You are to disregard anything you saw or heard outside of this
witness stand . . . . [¶] So are there any jurors at this time that . . .
believe they are influenced in any degree whatsoever in deciding the
evidence, deciding what the facts are and then after that applying the

8     The jury was instructed “to decide what happened, based only on the
evidence that has been presented to you in this trial. [¶] Do not let bias,
sympathy, prejudice, or public opinion influence your decision.”

                                     15
law given to you by the court to those facts? [¶] If you believe that you
are influenced to such a degree, please raise your hand.” No juror
raised his or her hand. The court questioned whether any juror was
“affected in any way whatsoever to the degree that you will be biased”
against either party. No juror raised his or her hand. When prompted
to ask any questions about the further admonishment, no juror asked a
question or raised his or her hand. Finally, the court asked the jurors if
they have been influenced “in any way whatsoever.” No juror raised his
or her hand or asked a question.
     After ordering the jurors back to deliberate, the court stated that
based on the jurors’ demeanor, it “firmly believe[d] that the jurors have
not been influenced in any way.”
     Following the jury’s verdict and during the sentencing hearing,
defense counsel moved for a new trial on the same grounds stated in the
motion for a mistrial. Counsel asserted the conduct had prejudiced the
jury, which was reflected in the inconsistent verdicts on the
premeditation allegations on counts 1 and 2. The court denied the
motion and noted that the verdicts were not inconsistent with the
circumstances of the crimes.


B.   Analysis
     “‘A motion for mistrial is directed to the sound discretion of the
trial court. We have explained that “[a] mistrial should be granted if
the court is apprised of prejudice that it judges incurable by admonition
or instruction. [Citation.] Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial court is

                                    16
vested with considerable discretion in ruling on mistrial motions.”’
[Citations.]” (People v. Gurule (2002) 28 Cal.4th 557, 614; see People v.
Valdez (2004) 32 Cal.4th 73, 128 [motion for a mistrial “should only be
granted when a defendant’s ‘chances of receiving a fair trial have been
irreparably damaged’”].) A trial court’s ruling on a motion for a new
trial is also reviewed for abuse of discretion. (People v. McCurdy (2014)
59 Cal.4th 1063, 1108.)
     Here, the trial court acted well within its discretion in finding that
the jury had not been prejudiced. Following the incident during
playback, the court admonished the jurors not to be influenced by any
outburst they may have witnessed during the playing of the 911 tape.
It then inquired whether any juror would be influenced “in any way
whatsoever” or would biased against defendant. No juror indicated that
he or she would be influenced or biased. Under these circumstances,
and considering the presumption that the jury followed the court’s
admonishment (People v. Avila (2006) 38 Cal.4th 491, 575), we conclude
that the trial court did not error in denying the motions for a mistrial
and a new trial.


4.   Use of Defendant’s Prior Juvenile Adjudication
     The operative information alleged that defendant had suffered one
prior strike (§§ 667, subd. (d), 1170.12, subd. (b)) in 2000 while he was a
juvenile. Defendant contends the use of his prior juvenile adjudication,
in which he had no right to a jury trial, to enhance his adult criminal
sentence in this case violates his constitutional rights under the Sixth
and Fourteenth Amendments to the United States Constitution.

                                    17
     Defendant concedes the California Supreme Court rejected this
argument in People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen).
Defendant maintains that Nguyen was wrongly decided and has since
been eroded by People v. Gallardo (2017) 4 Cal.5th 120, Mathis v.
United States (2016) 136 S.Ct. 2243, and Descamps v. United States
(2013) 570 U.S. 254.
     These cases have not overruled Nguyen or analyzed the propriety
of a sentencing court’s use of a prior juvenile adjudication to increase a
sentence in an adult criminal trial. As an intermediate appellate court,
we must follow the Supreme Court’s ruling in Nguyen. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Doing so here,
we conclude the use of defendant’s juvenile adjudication to enhance his
sentence in this case did not run afoul of the Sixth or Fourteenth
Amendment.


                             DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                         WILLHITE, Acting P. J.
     We concur:



     COLLINS, J.                         CURREY, J.




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