People v. Pitt CA5 ( 2014 )

Filed 5/13/14 P. v. Pitt CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F065395
Plaintiff and Respondent,
(Super. Ct. No. BF138583A)
v.
THOMAS LEO PITT, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Caely
E. Fallini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted Thomas Leo Pitt (appellant) of continuous sexual abuse of his
daughter, N.,1 a child under the age of 14 (Pen. Code, § 288.5, subd. (a))2, but acquitted
1 We refer to certain persons by their abbreviated names in accordance with our Supreme
Court’s policy regarding protective nondisclosure of identity. No disrespect is intended.
2 All further statutory references are to the Penal Code unless otherwise stated.
him of continuous sexual abuse of A., a child under the age of 14 (§ 288.5, subd. (a)), and
of committing a lewd and lascivious act on T., a child under the age of 14 (§ 288, subd.
(a).) The jury found not true the allegation that appellant committed an offense against
more than one victim. The trial court sentenced appellant to the upper term of 16 years in
state prison.
We reject appellant’s challenge to the trial court’s denial of a motion to sever the
count concerning N. from the remaining counts and to the trial court’s imposition of the
upper term. We grant his request and review the materials considered by the trial court in
the in camera Pitchess3 motion, but find no error.
STATEMENT OF THE CASE
This case arises out of appellant’s alleged sex crimes against N., A. and T.
Although he was acquitted of the charges involving A. and T., we include the evidence
related to those counts as it is relevant to appellant’s joinder claim.
Child N.
Appellant’s daughter, N., was born in February of 1995. Appellant began
touching her inappropriately when she was six years old. He rubbed her vagina with his
penis and ejaculated. He also orally copulated her “[j]ust about everyday” between the
ages of six and 10. He continued “rubbing” her until she was 12 years old. He had
vaginal intercourse with her for the first time when she was 10 years old. He did not
vaginally penetrate her again with his penis until she was 12, at which point it became a
regular daily occurrence for two and one-half years. The number of times appellant
sexually abused N. was in the hundreds.
Appellant also had N. orally copulate him on a regular basis. N. did not recall
when that started, but knew it was before she was 10 years old. He ejaculated in her
mouth when she was 12 or 13 years old, although he did that only a few times. N. did not
always live with appellant between the ages of six and 12, because, at some point, she
3 Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess).
2.
and her mother moved out. N. continued to visit and stay with appellant during that time.
When N. was 12, she saw appellant at least four times a week, and he had vaginal
intercourse with her almost every time during those visits. Appellant continued to
penetrate N. with his penis until she was 14 years old, even after appellant and her mother
reconciled. When N. was 14 years old, appellant and her mother split up again, and N.
did not see appellant too often after that.
At age 15, N. told her boyfriend about the abuse. She later reported the abuse to
law enforcement. She did not report the abuse earlier because she was “afraid” of “[l]ots
of things. I was afraid that if my dad had left, our family would struggle. I was afraid of
what people would think of me.”
With the assistance of Sergeant Scott Lopez, N. made two pretext phone calls to
appellant, who lived in Las Vegas at the time. The two calls were made on the same day,
four to five hours apart.
During the first call, which was played for the jury, N. said she had broken up with
her boyfriend and wanted to move in with appellant, but that she didn’t want “us to have
sex anymore.” Appellant promised, stating she didn’t have to worry because “[t]hat’s
done with.” When N. asked if he felt bad “for any of those things that you did to me,”
appellant said he would talk to her later about that because he did not feel comfortable.
N. asked that he at least apologize for what he did to A., as A. had told N. what appellant
had done. Appellant insisted that he hadn’t done anything to A. Appellant deflected a
question of whether he had molested “[C.]” N. said that he could at least apologize and
make her feel better and appellant said “I already did.” When N. asked “[w]hen,”
appellant said “I said I was sorry. It’s like you’re trying to get me to confess.” N. said
that maybe she was looking for a confession, to which appellant asked her to call him
later.
When N. made her second call, which was also played for the jury, she said she
“really” needed to talk to appellant. Appellant said they would talk when she got to his
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place. N. asked appellant if what A. had told her was a lie, to which appellant responded,
“Yes” and he reiterated that “[n]othing happened with A.” At one point when N. asked
whether she was “the only one,” which she told appellant was a simple “yes or no
question,” appellant did not answer but said he was “real paranoid” of “[l]ife.” N.
continued to insist that appellant promise there would be “no more sex, no more
touching, no nothing.” Appellant eventually promised. Towards the end of the phone
call, when N. continued to ask for reassurance that she was “the only one,” appellant said
he was reassuring her but “don’t ask me again.”
Child A.
A. was born in September of 1996 and is N.’s half-sister. Appellant was A.’s
stepfather. A. visited her mother and appellant on weekends. Appellant began touching
A.’s breasts when she was nine. The first time was when she was lying down on her
mother’s bed and appellant touched her breasts underneath her shirt. When A. told
appellant to stop, he claimed he thought she was her mother.
The next time appellant touched A.’s breast was when she was 10 or 11 years old.
He came into her room on a weekly basis while she was sleeping and would leave when
she woke up. He mainly touched her breasts outside of her clothing. This touching
continued through A.’s 12th birthday.
According to A., appellant also did the following: he asked her to show him her
breasts when she was 12 or 13; he always came into the bathroom while she was
showering; he set up a video camera in the bathroom to record her undressing; he used
the reflective side of a CD slipped underneath the bathroom door to see her in the
bathroom; and he apologized for “what he did” to her.
According to Sergeant Lopez, the sheriff’s department determined that it would be
ineffective for A. to make a pretext phone call to appellant regarding her sexual abuse
claims.
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Child T.
T. was born in 1994. In 2002, T. and N. were friends who lived next door to one
another and sometimes spent the night together. One night, when T. was in the second or
third grade, she woke up at N.’s to find appellant’s mouth on her genitals. Her pants and
underpants had been pulled down and appellant was “moving his tongue and licking” her.
T. did not remember what happened next. She told her younger sister, but no one else
until she was later questioned by her mother.
T. was interviewed about this event by Sergeant Lopez back in 2003, but the taped
interview was later destroyed because the district attorney’s office had not filed charges
and the case had been closed.
Defense
Appellant’s son, T., Jr., testified that he is five years older than his half-sister N.
He lived with appellant, N., A. and others for seven or eight years in one- or two-
bedroom houses. N. and A.’s mother was his stepmother. A. did not live with them full
time, but visited them on the weekends. Appellant’s son acknowledged that he was
incarcerated in various facilities when he was 16; he went to juvenile hall for the first
time when N. was 11.
According to appellant’s son, appellant never molested him, he did not see
appellant molest anyone, and he never heard or saw any signs that appellant had had sex
with N. or A. He did overhear appellant and his stepmother fight a lot and he overheard
his stepmother threaten appellant. Appellant’s son testified that N. was “[n]ot really” a
“nice girl” at age 15, because she did whatever she wanted, went wherever she wanted,
and stayed out all night, which appellant did not like.
Appellant testified in his own behalf and denied molesting N., A., or T. He
thought T.’s accusations were the result of a feud he had had with T.’s mother’s
boyfriend. He denied touching T. inappropriately.
5.
Appellant described his relationship with N.’s mother as “rocky.” He claimed
their “intimate life” was impacted due to the fact that they lived in various two- or three-
bedroom homes with nine or 10 people.
Appellant denied molesting N. or having intercourse with her. By the time N. was
15, appellant had moved out. He described his relationship with N. as “stressed” because
she wanted him to come home and he did not approve of her staying out all night or
living with her boyfriend.
Appellant moved to Las Vegas in 2010 and lived with his mother. During that
time, he spoke to N. once or twice a week by telephone. Appellant claimed that his
mother distracted him during the two pretext phone calls N. made. He did not think N.
accused him of molesting her or of having sex with her, but that she was talking about
someone else when she mentioned sex. Thus, according to appellant, there was no need
to deny he ever had sex with her during the calls. He also claimed that when he stated he
was “paranoid” during the one call, he was talking about his medical condition of
paranoid schizophrenia.
DISCUSSION
I. Motion to Sever
Appellant argues the trial court erred when it denied his motion to sever the count
involving N. from the counts involving A. and T. We disagree.
Procedural Background
The People’s complaint charged appellant with two counts of continuous sexual
abuse of a minor under the age of 14 (§ 288.5, subd. (a) [counts 1 & 2]) and one count of
committing a lewd and lascivious act on a minor under the age of 14 (§ 288, subd. (a)
[count 3]). Before trial, appellant moved to sever count 1, the charge involving N., from
counts 2 and 3, involving A. and T., arguing they were “wholly unrelated” and separate
and distinct crimes. He also argued that the status of the victims was different (one his
biological child, one a legal relative, and one an unrelated neighbor), that it would be
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fundamentally unfair for one trier of fact to determine all the charges, that the case had
“sexually violent predator ramifications,” and that any judicial economy in trying the
charges together did not trump his constitutional rights. The People opposed the motion.
In denying the motion, the trial court stated that it had considered the written
points and authorities in support of the motion, as well as argument from counsel, and
found that the counts were properly joined as they were offenses “of the same class.”
The trial court found that “at least some of the evidence would be cross-admissible were
these offenses to be tried separately.” The trial court also found that it appeared that this
was not a situation where “the nature of the evidence or what’s alleged to constitute the
basis for the offenses is considerably more inflammatory with one alleged set of facts
then it is in the others.” Instead, the counts, which involved victims in roughly the same
age range, were “roughly equivalent.” The trial court concluded:
“So taking all of those factors into consideration, considering that it is more
economical judicially for the matters to be tried together, though that is not
dispositive in and of itself, it does appear to the Court that it is appropriate
to deny the motion to sever any of the counts from the others.”
Applicable Law and Analysis
We review the trial court’s denial of a defendant’s motion for severance for abuse
of discretion (People v. Stanley (2006) 39 Cal. 4th 913, 934), which occurs only if the trial
court’s ruling falls outside the bounds of reason (People v. Soper (2009) 45 Cal. 4th 759,
774 (Soper)). As we shall explain, the trial court did not abuse its discretion in denying
appellant’s motion for severance.
In reviewing a challenge to a denial of a motion to sever charges for trial, we
begin with the premise that “[t]he law prefers consolidation of charges.” (People v.
Ochoa (2001) 26 Cal. 4th 398, 423, disagreed with on other grounds in People v. Prieto
(2003) 30 Cal. 4th 226, 263, fn. 14; accord People v. Thomas (2011) 52 Cal. 4th 336, 349-
350; Alcala v. Superior Court (2008) 43 Cal. 4th 1205, 1220.) Section 954 provides in
pertinent part:
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“An accusatory pleading may charge two or more different offenses
connected together in their commission, or different statements of the same
offense or two or more different offenses of the same class of crimes or
offenses, under separate counts, and if two or more accusatory pleadings
are filed in such cases in the same court, the court may order them to be
consolidated.”
Thus, if offenses are “of the same class of crimes,” as they are here, the People may
charge them in the same accusatory pleading. (§ 954.)
Appellant was charged with two counts of continuous sexual abuse of a minor
(§ 288.5, subd. (a)) and one count of committing a lewd and lascivious act on a minor
(§ 288, subd. (a)). Two of the charges here were identical, except for the victims; all
three allegations share several “common characteristics,” inasmuch as they all involved
incidents where appellant was charged with sexual misconduct of a minor. (People v.
Lucky (1988) 45 Cal. 3d 259, 276; Soper, supra, 45 Cal.4th at p. 771 [charges of same
crime against two victims were of same class]; People v. Poon (1981) 125 Cal. App. 3d
55, 69 [sex offenses against two victims were properly joined].)
Although the statutory requirements for joinder were met, the trial court had
discretion to order severance of the charged offenses “in the interest of justice and for
good cause shown.” (§ 954.) “The burden is on the party seeking severance to clearly
establish that there is a substantial danger of prejudice requiring that the charges be
separately tried.” (People v. Bean (1998) 46 Cal. 3d 919, 938; see also People v. Stanley,
supra, 39 Cal.4th at p. 934 [“defendant can only predicate error in the denial of severance
on a clear showing of potential prejudice”].) This is a heavy burden, for the benefits to
the state in conserving judicial resources and public funds “often weigh strongly against
severance of properly joined charges,” and also give the trial court broader discretion in
ruling on a severance motion than it has in ruling on the admissibility of evidence of
uncharged offenses in a separate trial. (Soper, supra, 45 Cal.4th at pp. 774, 775, fn.7.)
Thus, where, as here, charges meet the requirement for joinder, the burden of showing
prejudice from denial of a severance motion “‘is so great that the courts almost invariably
reject the claim of abuse of discretion.’” (People v. Matson (1974) 13 Cal. 3d 35, 39;
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accord People v. Poon, supra, 125 Cal.App.3d at p. 69.) Appellant has not met that
burden here.
When reviewing a severance motion, reviewing courts generally “‘consider the
record before the trial court when it made its ruling.’” (People v. Hartsch (2010) 49
Cal. 4th 472, 493.) In assessing potential prejudice:
“The factors to be considered are these: (1) the cross-admissibility of the
evidence in separate trials; (2) whether some of the charges are likely to
unusually inflame the jury against the defendant; (3) whether a weak case
has been joined with a strong case or another weak case so that the total
evidence may alter the outcome of some or all of the charges; and (4)
whether one of the charges is a capital offense, or the joinder of the charges
converts the matter into a capital case.” (People v. Mendoza (2000) 24
Cal. 4th 130, 161; accord, People v. Zambrano (2007) 41 Cal. 4th 1082,
1128-1129, disapproved on other grounds in People v. Doolin (2009) 45
Cal. 4th 390, 421, fn. 22.)
Appellant acknowledges that, at the time the trial court denied the severance
motion, “it arguably was a proper ruling since all applicable joinder factors discussed in
Mendoza, supra, seemed to be present.” We agree. The evidence regarding A. and T.
would be admissible in a separate trial involving N. And the evidence in the counts
involving A. and T. was not more serious or inflammatory than the evidence in the count
involving N.
However, he argues that, even if the ruling on the motion was correct when made,
reversal is required because the “‘joinder was so grossly unfair as to deny due process.’”
We disagree.
Our Supreme Court has held that “even if a trial court’s ruling on a motion to
sever is correct at the time it was made, a reviewing court still must determine whether, in
the end, the joinder of counts or defendants for trial resulted in gross unfairness depriving
the defendant of due process of law.” (People v. Rogers (2006) 39 Cal. 4th 826, 851.)
We hold there was no such deprivation here, for several reasons: (1) the evidence of each
offense was “‘“simple and distinct”’”; (2) there was no great disparity in the nature of the
three charges; (3) the trial court instructed the jury that each count charged was a separate
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crime the jury had to consider separately and for which it had to return a separate verdict;
and (4) the jury found appellant guilty of one charge and not guilty of the other two,
indicating that the jury was “‘capable of differentiating [among his] various [crimes]’”
and that “‘no improper spillover effect is evident here’” (Soper, supra, 45 Cal.4th at
p. 784.)
II. Imposition of Upper Term
Appellant contends that the trial court abused its discretion when it imposed the
upper term of 16 years in state prison, arguing that the trial court improperly relied on a
number of factors in doing so. We disagree.
Procedural Background
Appellant’s probation report recommended imposition of the upper term of 16
years. The report cited no circumstances in mitigation and the following circumstances
in aggravation: (1) appellant had numerous prior convictions as an adult; (2) his prior
performance on misdemeanor probation was unsatisfactory; (3) he took advantage of a
position of trust in the instant case; (4) he had engaged in violent conduct which indicated
he posed a serious danger to society; and (5) the instant crime involved a high degree of
callousness. The report listed appellant’s prior criminal convictions from 1990 to 2009,
which included various driving violations—driving under the influence (Veh. Code,
§ 23152, subd. (a))—reckless driving, alcohol or drug related (Veh. Code, § 23103.5,
subd. (a)); contributing to the delinquency of a minor (§ 272); causing corporal injury to a
spouse or cohabitant (§ 273.5, subds. (a) & (b)); causing willful harm or injury to a child
(§ 273a, subd. (b)); and three convictions for battery (§ 243, subds. (a) & (b)).
Appellant filed a personal statement requesting the low term of six years. At
sentencing, appellant’s counsel asked for the low term of six years, though the 12-year
term “may be appropriate,” but that the 16-year term was “error.”
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The trial court, in imposing the upper term of 16 years, stated that it had “full
discretion in determining which of the three terms to select,” found no circumstances in
mitigation, and in aggravation found the following:
“First, the defendant’s previous convictions as an adult are numerous.
Some of them are relatively minimal in character, less so. [¶] Second, his
previous performance on misdemeanor probation was unsatisfactory in that
he violated terms and condition[s] of probation and continued to reoffend.
[¶] Third, he took advantage of a position of trust in this matter in that he
was a victim’s biological father. [¶] Fourth, he engaged in violent conduct
which indicates a serious danger to society as evidenced not only by the
offense in this case but his previous convictions for violation of Penal Code
Sections 243(a) and 273.5(a)/17[b], those being offenses involving violence
against a person. [¶] And, fifth, the crime involved a high degree of
callousness in that the defendant had sexual intercourse on [a] repeated and
extended basis with the victim for a period of several years and engaged in
additional sexual conduct previous to that.”
Applicable Law and Analysis
A person convicted of violating section 288.5, subdivision (a), may be sentenced
to six, 12, or 16 years in state prison. “‘Sentencing courts have wide discretion in
weighing aggravating and mitigating factors.’” (People v. Avalos (1996) 47 Cal. App. 4th
1569, 1582.) “[A] trial court is free to base an upper term sentence upon any aggravating
circumstance that the court deems significant, subject to specific prohibitions. (See, e.g.,
Cal. Rules of Court, rule 4.420(c)[4] [fact underlying an enhancement may not be used to
impose the upper term unless the court strikes the enhancement]; id., rule 4.420(d) [fact
that is an element of the crime may not be used to impose the upper term].)” (People v.
Sandoval (2007) 41 Cal. 4th 825, 848, first and second bracketed insertions added.)
In addition, in determining whether to impose the lower, middle, or upper term,
the court is not limited to the factors set forth in rule 4.421; rather, any relevant fact may
be considered. (People v. Covino (1980) 100 Cal. App. 3d 660, 671; rule 4.408(a).) It is
4 All further rule references are to the California Rules of Court.
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settled that single factor in aggravation is sufficient to justify the upper term. (People v.
Cruz (1995) 38 Cal. App. 4th 427, 433; Covino, at p. 670.)
“‘The burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational and arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal. 4th
968, 977-978.)
Appellant faults the trial court for relying on his nine prior convictions because
they were “all misdemeanors” and his probation violations because they were “apparently
not serious.” The rules of court, however, do not prevent the trial court from considering
misdemeanor convictions. (Rule 4.421(b)(2); see also People v. Searle (1989) 213
Cal. App. 3d 1091, 1098; People v. Stuart (2008) 159 Cal. App. 4th 312, 314, fn. omitted
[criminal records consisting solely of misdemeanor convictions qualify as aggravating
circumstance, making defendant eligible for upper term].) Neither do the rules of court
prevent the trial court from considering his unsatisfactory performance on probation.
(Rule 4.421(b)(5).) According to the probation report, appellant suffered four violations
of probation.
Appellant also contends that, while his conduct may have been violent, it did not
indicate “a serious danger to society,” (rule 4.421 (b)(1)), but only a possible danger to
the victim. Appellant fails to include the fact that he suffered prior convictions for
causing corporal injury to a spouse or cohabitant, causing willful harm or injury to a
child, and three convictions for battery, which demonstrate that he does pose a serious
danger to society.
Appellant next argues that the trial court’s reliance on the “‘callousness’ factor
based on ‘repeated and extended’ sexual conduct” is present in every violation of section
288.5, and therefore, as an element of the offense, cannot be relied upon to impose the
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upper term. (Rule 4.420(d).) To prove a violation of section 288.5, continuous sexual
abuse of a child, a prosecutor must establish that the defendant, “over a period of time,
not less than three months in duration, engages in three or more acts of substantial sexual
conduct with a child under the age of 14 years .…” (§ 288.5, subd. (a).) Here, the
evidence was that appellant’s abuse of N. extended far beyond the three month duration
or the three specified acts of sexual conduct required for a conviction. Given the extent
to which appellant sexually abused N., the instant case was “distinctively worse” than the
ordinary violation of section 288.5, subdivision (a), and justified the upper term. (People
v. Black (2007) 41 Cal. 4th 799, 817.)
Finally appellant contends that the “violation of trust” relied on by the trial court is
inherent in every section 288.5, subdivision (a) conviction and therefore also an element
of the offense and cannot be used as an aggravating factor. (Rule 4.420(d).) However,
the prosecution need not prove either the victim’s vulnerability or that defendant abused a
position of trust in order to convict him of continuous sexual abuse. (§ 288.5, subd. (a).)
Accordingly, we find no error in appellant’s sentence to the upper term of 16 years
in state prison.
III. Pitchess Motion
Appellant contends that the trial court erred in denying his motion for discovery of
peace officer personnel records pursuant to Pitchess and requests that this court conduct
an independent in camera review of the records to determine if the trial court improperly
limited the scope of discoverable records. The People do not object to appellant’s
request.
Prior to trial, appellant filed a Pitchess motion. In it, he sought discovery of police
personnel records of Deputy Scott Lopez related to instances of misconduct. The motion
alleged that Deputy Lopez authored a report in which he indicated that he responded to a
prior child molestation investigation regarding appellant and a different victim in 2003;
that when investigating the current case, he told the alleged victims that appellant was
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“scum who beat a case just like this one, and I am not going to let him get away with it
again”; and that he proceeded to tell the alleged victims to lie about appellant in order to
get a current conviction. The trial court held an in camera review and determined that
there were no discoverable materials found in the material produced.
In Pitchess, supra, 11 Cal. 3d 531, the California Supreme Court held that a
criminal defendant is entitled to discovery of officer personnel records if the information
contained in the records is relevant to the defendant’s ability to defend against the charge.
Later enacted legislation implementing the court’s rule permitting discovery (§§ 832.5,
832.7, 832.8; Evid. Code, §§ 1043-1047) balanced the accused’s needs for disclosure of
relevant information against a law enforcement officer’s legitimate expectation of privacy
in his or her personnel records. The Legislature concluded that a defendant, by written
motion, may obtain information contained in a police officer’s personnel records if it is
material to the facts of the case. (Evid. Code, § 1043, subd. (b)(3).) When presented
with such a motion, the court rules whether there is good cause for disclosure to the
defendant. (Evid. Code, §§ 1043, 1045.) If the court orders disclosure, the custodian of
the officer’s records brings to court all the potentially relevant personnel records and, in
camera, the court determines whether any of the records are to be disclosed to the
defense. “A trial court’s ruling on a motion for access to law enforcement personnel
records is subject to review for abuse of discretion.” (People v. Hughes (2002) 27
Cal. 4th 287, 330; see also Haggerty v. Superior Court (2004) 117 Cal. App. 4th 1079,
1086, citing People v. Samayoa (1997) 15 Cal. 4th 795, 827.)
We have received the sealed documents the trial court reviewed in conducting its
Pitchess analysis. Having obtained those documents, we note first that the trial court
complied with the procedural requirements of a Pitchess hearing. There was a court
reporter present, and the custodian of records was sworn prior to testifying. (People v.
Mooc (2001) 26 Cal. 4th 1216, 1228, 1229, fn. 4; People v. White (2011) 191 Cal. App. 4th
1333, 1339-1340.) The custodian of records complied with the requirement to bring all
14.
the records and submit them for the court to review and determine which documents were
relevant. (People v. Wycoff (2008) 164 Cal. App. 4th 410, 414-415.)
We also have reviewed the sealed documents and find no reversible error with
regard to nondisclosure of those records. (People v. Hughes, supra, 27 Cal.4th at p. 330;
People v. Watson (1956) 46 Cal. 2d 818, 836.)
DISPOSITION
The judgment is affirmed.
_____________________
HILL, P. J.
WE CONCUR:
_____________________
LEVY, J.
_____________________
DETJEN, J.
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