People v. McVey ( 2018 )

Filed 6/12/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B280966
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA432637)
v.
TROY T. McVEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Douglas W. Sortino and Henry J. Hall, Judges.
Affirmed.
Sally Patrone Brajevich, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Margaret E. Maxwell and Scott A. Taryle,
Supervising Deputy Attorneys General, and Gregory B. Wagner,
Deputy Attorney General, for Plaintiff and Respondent.
_________________________________
Troy T. McVey appeals the judgment entered following
three jury trials in which he was convicted of voluntary
manslaughter (Pen. Code, § 192, subd. (a)) in count 1, and felony
vandalism (Pen. Code, § 594, subd. (a)) in count 2.1 The jury
found true the personal firearm use allegation. (Pen. Code,
§ 12022.5, subd. (a).) The trial court imposed an aggregate
sentence of 16 years 8 months, consisting of the mid-term of
6 years for the voluntary manslaughter conviction, plus 10 years
for the firearm enhancement, and a consecutive 8-month term for
the felony vandalism conviction.
Appellant contends the trial court erroneously excluded
evidence that the victim had been diagnosed with paranoid
schizophrenia and had behaved aggressively in two
confrontations with police officers 20 years earlier in Florida. We
disagree and affirm the judgment of conviction. Appellant
further seeks remand for reconsideration of his firearm
enhancement pursuant to Senate Bill No. 620,2 which amended
Penal Code section 12022.5, subdivision (c) to remove the
1 Appellant was charged in count 1 with first degree
murder, but the jury in the first trial reached a verdict only on
count 2 while deadlocking on count 1. In a retrial of count 1, the
jury found appellant not guilty of first and second degree murder,
but guilty of voluntary manslaughter. Following the verdict, the
trial court granted a motion for a new trial on the ground that the
prosecution’s late disclosure of evidence had prejudiced appellant
in the second trial. A third trial on count 1 along with the verdict
on count 2 from the first trial resulted in the judgment and
sentence appellant now appeals.
2Senate Bill No. 620 (2017–2018 Reg. Sess.) Statutes 2017,
chapter 682, section 1.
2
prohibition on striking firearm enhancements. Because the trial
court’s comments at sentencing unequivocally indicate that it
would not exercise its new discretion under Penal Code section
12022.5, subdivision (c) to dismiss the firearm enhancement in
appellant’s case, we decline his remand request.
FACTUAL BACKGROUND
In the late night hours of January 4, 2015, appellant and
his friend, Coby, were walking on Cahuenga Boulevard in
Hollywood. Appellant was carrying a semiautomatic .22-caliber
handgun in his waistband behind his back. The magazine was
fully loaded and there was a round in the chamber; the gun was
cocked, and the safety was off. Outside an adult bookstore
appellant and Coby were approached by two African-American
men, who sold appellant what he believed to be cocaine for $40.
Appellant and Coby crossed the street as the drug dealers drove
away. When appellant and Coby examined the drugs they had
just bought, appellant was upset to discover the substance was
not cocaine, but powdered sugar.
The two men went to their car and changed clothes. They
then returned to the area where the drug deal had taken place,
and appellant saw what he thought was the car belonging to the
drug dealers. Still upset about the fake drugs, he smashed all of
the car’s windows with the handle of a knife he was carrying.
When an onlooker yelled at them, appellant stopped breaking the
windows, and he and Coby walked away.
About a block away, appellant and Coby encountered a
homeless man named Richard Miller, who was panhandling.
Miller extended his hand toward appellant and asked for money.
3
An altercation ensued,3 and appellant fired a shot at Miller.
After a few seconds, appellant fired multiple shots in rapid
succession. Miller collapsed on the sidewalk, and appellant
walked away. Miller suffered a total of seven gunshot wounds,
two of which were fatal.
Appellant and Miller stood between four and ten feet away
from each other when appellant fired on Miller. According to
seven eyewitnesses, Miller had made no aggressive moves toward
appellant or threatened him before appellant fired his gun, but
one witness reported seeing some pushing and shoving. None of
the witnesses saw any weapon in Miller’s hands or in the area
where he fell, nor did police find a weapon of any kind on or
around Miller.
Appellant testified that Miller approached him from
behind, gesturing with his palm up and asking for money.
Appellant felt Miller was pushing him toward a wall. Looking
over his shoulder, appellant saw Miller reach into his pocket, and
appellant took out his gun. Still with his back to Miller,
appellant fired a warning shot into the ground. Appellant then
turned around to face Miller, who had balled his hands into fists.
The men were about six to eight feet apart. Appellant told Miller
to get away, but Miller ignored him. Appellant noticed a knife in
Miller’s right hand and shot Miller in the right leg out of fear.
But the shot appeared to have no effect, and Miller continued to
3Three eyewitnesses heard appellant say to Miller, “Give
me back my money,” but one eyewitness testified that it was
Miller who demanded money from appellant. Another eyewitness
observed some pushing and shoving but could not hear what the
men were saying.
4
advance. Appellant fired another shot at Miller’s other leg to
make him fall, but Miller lunged at appellant, leaving appellant
no choice but to aim higher and fire again. Appellant shot Miller
three more times before walking away.
DISCUSSION
I. The Trial Court Properly Excluded Medical
Records and Police Reports Pertaining to the
Victim, as Well as the Defense Expert’s
Testimony Based on Those Records
A. Procedural history
1. The motion for a new trial
Following appellant’s conviction for voluntary
manslaughter in the second trial, appellant moved for a new trial.
The basis for the motion was the prosecution’s delay until the end
of trial in turning over evidence that Miller may have suffered
from bipolar disorder or schizophrenia. (Brady v. Maryland
(1963) 373 U.S. 83, 87.) Attached as exhibits to the motion were
Miller’s medical records and two police reports from Florida.
The medical records contained observations of Miller
between August and November 1995, while he was housed in
Pinellas County jail. The observations included descriptions of
Miller as “psychotic,” “delusional,” and “paranoid,” and
documented “very bizarre behavior,” including urinating and
smearing feces on the walls. Doctors diagnosed Miller with
paranoid schizophrenia, and on November 14, 1995, he was
transferred to Florida State Hospital in Chattahoochee, Florida,
after a Pinellas County court found him incompetent to stand
trial. The medical records included a California subpoena
directed to the custodian of records for the Pinellas County
Sheriff’s Office. In support of the new trial motion, defense
5
counsel also submitted a declaration with two additional exhibits
which included doctors’ reports from Miller’s stay at Florida State
Hospital from 1995 to 1997.
One of the police reports was from the Tarpon Springs
Police Department. It described an encounter with police on
July 27, 1995, in which Miller put his hand in his pocket and told
officers to shoot him. Miller threw something at police and
struggled violently as an officer attempted to conduct a pat-down
search. After two officers subdued him, Miller was arrested on
suspicion of resisting arrest with violence. The second police
report, titled, “Fort Lauderdale Police Department: Offense
Incident Report,” described an incident on May 21, 1998, in which
Miller reacted violently to officers who had awoken him when
they found him sleeping on the beach. Miller resisted arrest, and
police used pepper spray to bring him into custody.
At the hearing on the motion for a new trial, the defense
psychiatric expert, Dr. Stephen Wilson, testified that the Florida
medical records and police reports showed Miller had been found
incompetent four times between 1995 and 1996, and the
prevailing diagnosis across all the medical records was that
Miller suffered from schizophrenia. He stated that a person
suffering from schizophrenia typically hears imaginary voices and
displays aggressive behavior. Dr. Wilson explained that
schizophrenia is a lifelong illness that can be controlled with
medication, but never cured. The medical records described
Miller’s behavior “as hostile, arrogant and delusional” throughout
his commitment, but there was no indication that Miller acted out
violently in the psychology ward or the state hospital. The police
reports told a slightly different story, showing Miller behaving
aggressively on two occasions in contacts with police.
6
Dr. Wilson opined that Miller’s behavior in 2015 would
likely be consistent with the behavior he exhibited in 1995 as
documented in the medical records and police reports. However,
the doctor acknowledged that it is not possible to predict behavior
on a particular night in 2015 based on 20-year-old documents.
The trial court (Judge Douglas W. Sortino) granted the new
trial motion based on newly discovered evidence. In light of the
jury’s acquittal on first and second degree murder, Judge Sortino
found that the jury must have accepted the defense to some
extent, and concluded that “this additional information . . . could
have, likely might have, resulted in a different verdict at trial.”
2. The trial court’s ruling on the admissibility of evidence of
Miller’s mental illness and criminal history
Prior to the third trial, the prosecution sought to exclude
the medical records, police reports, and any testimony by the
defense expert based on those documents. The court (Judge
Henry J. Hall) reviewed Dr. Wilson’s testimony from the new trial
motion along with the medical records and police reports. The
court found the police reports were inadmissible hearsay under
People v. Sanchez (2016) 63 Cal. 4th 665 (Sanchez). Noting the
absence of any declaration or affidavit pursuant to Evidence Code
section 15614 that would qualify the medical records under the
business records exception, the court ruled the medical records
inadmissible under Sanchez because they contained multiple
layers of hearsay and did not fit under any hearsay exception.
4 Undesignated statutory references are to the Evidence
Code.
7
The court further declared that the defense expert could not
testify about the medical records.
During trial, defense counsel revisited the admissibility of
the medical records. He advised the court that he had been
unable to obtain a certification of the records because they had
been purged from the hospital’s records and the medical facility
where Miller was treated had since closed. Nevertheless, “in light
of the totality of the circumstances,” which included Judge
Sortino’s ruling on the new trial motion, counsel asked the court
to apply the pre-Sanchez rules for expert testimony and allow the
expert to testify about Miller’s mental illness based on the
contents of the medical records.
Finding the medical records to be case-specific hearsay,
Judge Hall held the documents inadmissible under Sanchez.
Judge Hall added that he had strong reservations about the
records’ reliability and would likely have excluded them even
under the pre-Sanchez rules. The court reaffirmed its previous
ruling prohibiting Dr. Wilson from relying on the medical records
under section 802.5
B. Judge Sortino’s ruling granting the motion for a new
trial had no bearing on the issue of whether the documents
were admissible.
Appellant argues that in granting the new trial motion,
Judge Sortino implicitly found “the defense could introduce the
evidence of mental illness and aggression at the third trial.”
5 Under section 802, a court in its discretion may prohibit
an expert from relying on case-specific hearsay to support her
trial testimony. (See People v. Williams (2016) 1 Cal.5th 1166,
1200.)
8
Appellant is incorrect. The sole issue before the court in ruling on
the new trial motion was whether the late disclosure of medical
records and police reports prejudiced appellant by preventing him
from fully investigating potentially material facts. The court’s
decision on this issue was wholly separate from the question of
whether particular records would be admissible in another trial.
Indeed, as Judge Hall observed, there was nothing in the record
of the new trial hearing “to suggest that Judge Sortino was
making findings about the admissibility of these documents.”
Furthermore, even if Judge Sortino had made findings
about the admissibility of the medical records and police reports,
those evidentiary rulings would not have been binding on Judge
Sortino himself or any other judge in a subsequent trial, for the
trial “judge is free, in the exercise of sound judicial discretion, to
alter a previous in limine ruling.” (Luce v. United States (1984)
469 U.S. 38, 41–42; Ohler v. United States (2000) 529 U.S. 753,
758, fn. 3 [“in limine rulings are not binding on the trial judge,
and the judge may always change his mind during the course of a
trial”]; see People v. Rodrigues (1994) 8 Cal. 4th 1060, 1174;
Le Francois v. Goel (2005) 35 Cal. 4th 1094, 1096–1097, 1107.)
C. The medical records and police reports were
inadmissible hearsay, and under Sanchez, the defense
expert could not testify about the contents of those records
and reports.
1. The business records hearsay exception
Codified by section 1271, the business records exception to
the hearsay rule permits admission of hearsay to prove an act,
condition, or event if the following foundational requirements are
met: “(a) The writing was made in the regular course of a
business; [¶] (b) The writing was made at or near the time of the
act, condition, or event; [¶] (c) The custodian or other qualified
9
witness testifies to its identity and the mode of its preparation;
and [¶] (d) The sources of information and method and time of
preparation were such as to indicate its trustworthiness.”
(§ 1271; People v. Zavala (2013) 216 Cal. App. 4th 242, 246.) It is
the burden of the party offering the evidence to establish that
these foundational requirements have been met. (People v.
Hovarter (2008) 44 Cal. 4th 983, 1011.) The trial court is vested
with broad discretion to determine whether a party has laid a
proper foundation for admission of records under section 1271,
and the court’s exercise of that discretion “ ‘will not be disturbed
on appeal absent a showing of abuse.’ ” (Zavala, at pp. 245–246.)
Hospital records and similar documents are often
admissible as business records, assuming a custodian of records
or other duly qualified witness provides proper authentication to
meet the foundational requirements of the hearsay exception. (In
re R.R. (2010) 187 Cal. App. 4th 1264, 1280; People v. Landau
(2016) 246 Cal. App. 4th 850, 872, fn. 7.) Compliance with a
subpoena duces tecum may dispense with the need for a live
witness to establish the business records exception if the records
are produced by the custodian or other qualified witness, together
with the affidavit described in section 1561. (§ 1560, subd. (b); In
re R.R., at p. 1280; In re Troy D. (1989) 215 Cal. App. 3d 889, 903.)
As relevant here, the affidavit must include “[a] description of the
mode of preparation of the records” and a statement to the effect
that “[t]he affiant is the duly authorized custodian of the records
or other qualified witness and has authority to certify the
records” and “[t]he records were prepared by the personnel of the
business in the ordinary course of business at or near the time of
the act, condition, or event.” (§ 1561, subd. (a)(1), (3), (5).)
The medical records appellant sought to introduce in this
case were not authenticated in any way and plainly did not meet
10
the requirements for the business records exception. Defense
counsel advised the trial court that the medical records had been
destroyed by the Florida state hospital that had generated and
maintained them, and counsel had obtained copies of the records
pursuant to a subpoena directed to the Pinellas County Sheriff’s
Office in Florida. But defense counsel admitted that obtaining
the requisite certification from the hospital would be impossible.
And contrary to appellant’s assertion, the mere fact that the
medical records had been subpoenaed did not make them reliable
or otherwise admissible as business records. (People v. Blagg
(1968) 267 Cal. App. 2d 598, 609–610 [in the absence of live
testimony of a qualified witness, affidavit of an authenticating
witness is required in order to lay a proper foundation for
admissibility].)
The record on appeal in this case demonstrates that the
sources of the medical records were third party entities which
could supply no information about who prepared the documents,
the circumstances and method of preparation, how the records
were maintained by the hospital, or even whether the copies
provided were the complete records. There being no proper
foundation for the admission of the medical records under the
business records exception to the hearsay rule, the trial court
properly exercised its discretion in excluding the documents.
The police reports were similarly inadmissible. As a
general rule, police reports do not fall under the business records
exception. Our Supreme Court has explained: “Business records
are defined as writings made in the regular course of business, at
or near the time of the event, and created through sources of
information and a method of preparation reflecting its
trustworthiness. (§ 1271; see also § 1280 [record by public
employee].) When a record is not made to facilitate business
11
operations but, instead, is primarily created for later use at trial,
it does not qualify as a business record.” (Sanchez, supra, 63
Cal.4th at p. 695, fn. 21; see Melendez-Diaz v. Massachusetts
(2009) 557 U.S. 305, 321 [certain documents kept in regular
course of business—like police reports generated by law
enforcement officials—not subject to business or official records
hearsay exceptions because “the regularly conducted business
activity is the production of evidence for use at trial”].)
In any event, the absence of any affidavit or live testimony
from an authenticating witness in this case is fatal to appellant’s
claim that the police reports were admissible as business records.
Because there is nothing about these documents to indicate any
particular degree of trustworthiness, the trial court did not abuse
its discretion in excluding them.
2. Sanchez
In Sanchez, our Supreme Court clarified the limits on the
extent to which an expert witness can relate and rely upon
hearsay in support of an opinion, based upon the distinction
between “ ‘case-specific hearsay’ ” and hearsay which is “part of
the ‘general background information’ acquired by the expert
through out-of-court statements as part of the development of his
or her expertise.” (People v. Stamps (2016) 3 Cal.App.5th 988,
995 (Stamps); Sanchez, supra, 63 Cal.4th at pp. 678, 686.)
Sanchez defined case-specific facts as “those relating to the
particular events and participants alleged to have been involved
in the case being tried,” and held that an expert is prohibited
from testifying to such facts if they are outside the expert’s
personal knowledge and do not fall under an exception to the
hearsay rule or have not been independently established by
competent evidence. (Sanchez, at pp. 676–677, 686.)
12
Traditionally, an expert’s testimony concerning her general
knowledge and background in her field of expertise, even if
technically hearsay and offered for its truth, has not been subject
to exclusion on hearsay grounds. (Sanchez, supra, 63 Cal.4th at
pp. 676, 685.) But it falls to the trial court “to exclude expert
testimony when necessary to prevent unreliable evidence and
insupportable reasoning from coming before the jury.” (Stamps,
supra, 3 Cal.App.5th at p. 994; Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal. 4th 747, 753.)
Thus, “[w]here general background hearsay is concerned, the
expert may testify about it so long as it is reliable and of a type
generally relied upon by experts in the field, again subject to the
court’s gatekeeping duty under Sargon.” (Stamps, at p. 996;
Sanchez, at pp. 676–679.)
Sanchez also explained that an “expert may still rely on
hearsay in forming an opinion, and may tell the jury in general
terms that he did so.” (Sanchez, supra, 63 Cal.4th at p. 685.)
However, “[i]t has long been the rule that an expert may not
‘ “under the guise of reasons [for an opinion] bring before the jury
incompetent hearsay evidence.” ’ ” (Id. at p. 679.) Thus, “[w]hat
an expert cannot do is relate as true case-specific facts asserted in
hearsay statements” about which the expert has no independent
knowledge and for which there is no independent competent
evidence, unless a hearsay exception applies. (Id. at p. 686.) In
addition, an underlying fact that has not been proven by
independent admissible evidence may not be included in a
hypothetical question posed to the expert. (Id. at pp. 677, 686;
Stamps, supra, 3 Cal.App.5th at p. 996.) “Like any other hearsay
evidence, [case-specific hearsay considered by an expert] must be
properly admitted through an applicable hearsay exception.
Alternatively, the evidence can be admitted through an
13
appropriate witness and the expert may assume its truth in a
properly worded hypothetical question in the traditional manner.”
(Sanchez, supra, 63 Cal.4th at p. 684, fn. omitted; People v.
Jeffrey G. (2017) 13 Cal.App.5th 501, 510 (Jeffrey G.).)
Appellant maintains that Sanchez does not preclude expert
testimony based on medical records and police reports showing
Miller was schizophrenic and had been aggressive in contacts
with Florida police 20 years earlier because “an expert may still
rely on hearsay in forming an opinion and may tell the jury he did
so in general terms, with a hypothetical including case specific
facts.” What appellant proposes is not simply informing the jury
“in general terms” what the expert relied on, however. Rather, by
appellant’s reasoning, the exception would swallow the rule by
allowing an expert to rely on case-specific hearsay under the
fiction that it is not offered for its truth—precisely what Sanchez
prohibits. As the high court explained, “There is a distinction to
be made between allowing an expert to describe the type or
source of the matter relied upon as opposed to presenting, as fact,
case-specific hearsay that does not otherwise fall under a
statutory exception.” (Sanchez, supra, 63 Cal.4th at p. 686.) The
former properly allows the jury to evaluate the probative value of
the expert’s testimony, while the latter purports to transform
otherwise inadmissible hearsay into competent evidence offered
for its truth. (Id. at pp. 683, 686.) In short, Sanchez precluded
the defense expert from relating to the jury the contents of the
medical records and police reports pertaining to the victim in this
case.
The trial court also properly excluded the defense expert’s
testimony based on the documents, for without disclosure of the
contents of the records, any opinion the expert might have offered
would have been irrelevant. As Sanchez recognized, “When an
14
expert relies on hearsay to provide case-specific facts, considers
the statements as true, and relates them to the jury as a reliable
basis for the expert’s opinion, it cannot logically be asserted that
the hearsay content is not offered for its truth.” (Sanchez, supra,
63 Cal.4th at p. 682.) Thus, the validity of the expert’s opinion
depends entirely on the truth of the hearsay: “If the underlying
hearsay is not true, the opinion is rendered irrelevant to the case
at hand.” (Jeffrey G., supra, 13 Cal.App.5th at p. 509; Sanchez, at
pp. 682–683.)
II. Remand Is Not Warranted for Reconsideration
of the Firearm Enhancement
Appellant contends the case must be remanded for
reconsideration of his firearm enhancement pursuant to Senate
Bill No. 620, which gave trial courts discretion to strike firearm
enhancements when the law became effective on January 1, 2018.
Respondent concedes that the new legislation applies
retroactively to cases in which judgment is not yet final on
appeal. (See In re Estrada (1965) 63 Cal. 2d 740, 748 [for a non-
final conviction, “where the amendatory statute mitigates
punishment and there is no saving clause, the rule is that the
amendment will operate retroactively so that the lighter
punishment is imposed”]; People v. Francis (1969) 71 Cal. 2d 66,
75–78 [where statute enacted during pending appeal gave trial
court discretion to impose a lesser penalty, remand was required
for resentencing].) Nevertheless, the Attorney General maintains
that remand in this case is inappropriate because the trial court’s
statements on the record affirmatively demonstrate that the trial
court would not exercise its new discretion to strike appellant’s
firearm enhancement. We agree.
The People rely on People v. Gutierrez (1996) 48
Cal. App. 4th 1894 (Gutierrez) to argue that no purpose would be
15
served by a remand in this case. In Gutierrez, the Court of
Appeal declined remand to allow the trial court to exercise its
new discretion under Romero6 to strike a prior conviction under
the “Three Strikes” law. The court held that Romero did not
require remand where the sentencing court had unequivocally
indicated that it would not have exercised its discretion to strike
the Three Strikes prior even if it had believed it could have done
so. (Gutierrez, at p. 1896.) Given that the trial court had
properly exercised its sentencing discretion to impose the
maximum term, the court concluded that “no purpose would be
served in remanding for reconsideration.” (Ibid.) Also in the
Romero context, our Supreme Court has unambiguously held that
“remand is not required where the trial court’s comments indicate
that even if it had authority to strike a prior felony conviction
allegation, it would decline to do so.” (People v. Fuhrman (1997)
16 Cal. 4th 930, 944; Romero, supra, 13 Cal.4th at p. 530, fn. 13;
see People v. Gamble (2008) 164 Cal. App. 4th 891, 901 [if “ ‘the
record shows that the trial court would not have exercised its
discretion even if it believed it could do so, then remand would be
an idle act and is not required’ ”].)
Under Penal Code section 12022.5, subdivision (a), the trial
court in this case had discretion to impose a 3-, 4-, or 10-year
prison term for the firearm enhancement in count 1. In choosing
the 10-year enhancement, the trial court identified several
aggravating factors, including the lack of significant provocation,
appellant’s disposition for violence, his lack of any remorse, and
his “callous reaction” after shooting an unarmed homeless man
6 People v. Superior Court (Romero) (1996) 13 Cal. 4th 497.
16
six or seven times. These factors, the court said, far outweighed
any mitigating factors. The court also noted that appellant “did
not hesitate to shoot this unarmed homeless guy” multiple times,
and described appellant’s attitude as “pretty haunting.” Thus,
when it imposed the sentence enhancement under Penal Code
section 12022.5, subdivision (a), the court declared, “[T]his is as
aggravated as personal use of a firearm gets,” and “the high term
of 10 years on the enhancement is the only appropriate sentence
on the enhancement.”
In light of the trial court’s express consideration of the
factors in aggravation and mitigation, its pointed comments on
the record, and its deliberate choice of the highest possible term
for the firearm enhancement, there appears no possibility that, if
the case were remanded, the trial court would exercise its
discretion to strike the enhancement altogether. We therefore
conclude that remand in these circumstances would serve no
purpose but to squander scarce judicial resources. (Fuhrman,
supra, 16 Cal.4th at p. 946; Gutierrez, supra, 48 Cal.App.4th at
p. 1896; cf. People v. McDaniels (2018) 22 Cal.App.5th 420, 423
[remand proper where record contains no clear indication of trial
court’s intent not to strike firearm enhancement].)
17
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
18