People v. Deponte CA3 ( 2021 )

Filed 4/5/21 P. v. Deponte CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C083127; C089372
Plaintiff and Respondent, (Super. Ct. Nos. 15F6796;
CRF1500006796)
v.
JAMES MANUEL DEPONTE,
Defendant and Appellant.
A jury found defendant James Manuel Deponte guilty of multiple charges
stemming from a domestic violence incident involving his girlfriend. He was sentenced
to an aggregate prison term of 13 years. On appeal, he contends the trial court
erroneously instructed the jury with CALCRIM No. 361, failure to explain or deny
adverse testimony. He also challenges the imposition of certain fines and fees in light of
People v. Dueñas (2019) 30 Cal.App.5th 1157.
We affirm.
1
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution’s Evidence
The victim testified she met defendant in late 2014 and began dating him
exclusively the following year. In October 2015, on the night of the incident, she
surprised defendant by visiting him while he was bartending at a local bar. She had a
drink and decided not to stay, so defendant suggested she socialize with his boss.1 The
boss and the victim went to a bar across the street, where the victim drank more.
At 2:00 a.m., defendant arrived at that bar. He was “very angry, visibly drunk,
stumbling, [and] screaming at people.” He asked his boss, “What are you doing with my
girlfriend?” The victim got up and left; defendant and the boss followed her to the
parking lot, arguing. Defendant then screamed at the victim, calling her names. The boss
told defendant he was fired.2 The victim, knowing how defendant gets when drunk, and
fearing it would “get worse,” got in her car and drove off.
She drove only a short distance before realizing she couldn’t safely drive and
returned to the parking lot. Defendant was waiting by his SUV. He reached into the
victim’s car, yelled, “Get out bitch,” grabbed her hand, and dragged her on the concrete
to his SUV, abrading her back. He told her to get into his SUV and forced her into the
passenger seat. He then got into the driver’s seat, yelled at her, and hit her in the
stomach. When she begged him to stop, he said, “Shut up, bitch.”
Defendant drove toward the victim’s house, driving 50 miles per hour in a 30
mile-per-hour zone and swerving frequently. While driving, defendant “constantly”
punched the victim’s face and stomach. The victim, in “extreme pain,” asked defendant
1 At the time of trial, defendant’s boss and the victim were dating.
2 The boss similarly testified that defendant arrived at the bar irritated, upset, and drunk
and said: “What the fuck? You have been gone all night.” Later, in the parking lot,
defendant screamed at the victim.
2
to stop and tried unsuccessfully to defend herself. Then, while the SUV was going 50
miles an hour, she opened the door, leapt out, and ended up face down in the roadway.
Defendant stopped the SUV, got out, and yelled, “ ‘Get out of the floor, bitch.’ ”
He then kicked her twice in the stomach. The victim got up and ran home; defendant
drove next to her. When she arrived, defendant was parked in her driveway, so she ran to
a neighbor’s house. Police arrived soon thereafter.
A treating paramedic described the victim’s injuries as multiple bleeding injuries
to her scalp, a black eye, a deformed jaw, a swollen, face, and multiple abrasions to her
torso.3 She appeared to be in extreme pain. The victim also gave a statement about the
incident to a responding officer.4
While paramedics were treating the victim, police stopped defendant near the
victim’s house. He was “highly agitated” and appeared intoxicated. He refused a
breathalyzer or blood test, but his blood-alcohol level was eventually tested at 0.18
percent. Defendant had blood on his hands, face, pants, and shirt. Blood was also on his
SUV’s center console and front passer seat. Defendant, screaming, repeatedly asked if
the victim was okay.
While being transported to jail, he told police, “I didn’t do this to her, dude.” He
claimed the victim’s ex-husband had attacked her and was “going to kill her.” He also
3 The victim ultimately suffered a lacerated liver, a broken jaw, a broken nose, and 10
facial fractures. She also had bruising around her eye and scrapes to her arm, elbow,
back, head, hand, face, and neck. She was eventually transferred by helicopter to a
higher level of care hospital, where she stayed for a week. To repair her jaw, she was put
under general anesthesia to have her bones reset, her mouth was wired shut for nine
weeks, two of her teeth were removed, and she had to wear braces for two and a half
years.
4 She told the officer she had had been in an argument with defendant at a bar. When he
drove her home, he started continuously punching her. Fearing for her life, she jumped
out of the moving SUV.
3
claimed he had found the victim by the side of the road and picked her up, getting her
blood on him. Defendant said he was a “golden belt boxer,” and claimed he kept the
victim safe from her ex-husband. He added, “I turn my back for one minute. I’m at work
and he fucking strikes.”5
At trial, the boss testified that, at some point during the incident, he called the
victim’s cell phone. When the victim answered, the boss heard defendant making sounds
like he was exerting himself, along with the victim screaming as if “she was scared to
death.” When the phone disconnected, the boss called back, and a few minutes later,
defendant answered. The boss said, “What the fuck is going on?” Defendant said he
couldn’t find the victim. He added that police were at the victim’s house, and her ex-
husband must have “beat the shit out of her.”
Defense’s Evidence
Defendant testified that the night of the incident, he was bartending when the
victim stopped by, and his boss came over to hang out. The three had a drink together,
and defendant resumed bartending. At some point, his boss and the victim went to
another bar.
When defendant had a break, he went to join them. When he arrived, his boss and
the victim were alone at the bar. His boss was ordering the victim another drink, but
defendant told him to stop because she looked intoxicated. His boss asked why he had
left work and grew angry with him. The three went outside, and his boss began to argue
with him — eventually firing him. Defendant tried to return to his bar, to retrieve his
belongings, but the boss refused to let him in.
Defendant then saw the victim get into her car. He and the boss tried to dissuade
her from driving. The boss eventually helped defendant retrieve some of his belongings
5 A video of defendant’s statement was played for the jury.
4
from the bar, and they returned to the parking lot. The victim pulled up next to them in
her car, refused defendant’s offer of a ride home, and drove off. Defendant sat in his
SUV and smoked a cigarette.
The victim soon returned, parking next to defendant, and the two began to talk.
She agreed to let him drive her home, and he took the back roads because he did not have
a driver’s license. Defendant testified that he felt comfortable driving because he had had
only four ounces of alcohol over the course of four and a half hours. But he conceded, he
knew he should not have been driving.
As he drove, he got into an argument with the victim. Defendant claimed the
argument escalated when the victim said she “couldn’t wait to call it a day and get in bed
and cuddle,” but defendant refused, saying he was going home. When defendant saw
headlights behind him, he feared it was the police and sped up. When defendant turned
on to the victim’s street, she started hitting him. He denied hitting the victim. He
testified he pushed her against the door to prevent her from hitting him and said he’d let
her go if she stopped hitting him. She said okay, but when he let go, she opened the door
and jumped out. He stopped and ran to check on her. He found her with her head on the
sidewalk and her body on the asphalt.
She said she was “fine” and did not appear injured, so he helped her into the SUV.
They both cried and apologized. Defendant again saw headlights and panicked, fearing
the police would arrest him because he had no license, no required interlock device, and
“was drunk.” The victim also feared she would lose her job. She hit defendant two more
times, exited the SUV, and ran away. A car pulled up next to him and the people inside
asked defendant if everything was okay. Defendant said the victim was drunk, and “I
give up,” and drove home.
Defendant testified that, when he arrived home, he began to drink vodka in his
SUV. The victim’s phone, which was on the passenger seat, rang. It was the boss.
Defendant told the boss the victim was drunk, had hit him, and jumped out of his SUV.
5
As defendant spoke, he realized the victim’s keys were still in his SUV, so he drove back
to the victim’s house. When he arrived, he saw police and an ambulance. He was
arrested.
When an officer told him he was under arrest for domestic violence, defendant
was upset because the officer refused to tell him the victim’s condition. He testified that
he “talk[ed] a lot of crap” to the officer. And during cross-examination, he denied saying
the victim’s ex-husband had injured her.
Verdicts and Sentencing
The jury found defendant guilty of inflicting corporal injury (Pen. Code, § 273.5,
subd. (a))6, battery with serious bodily injury (§ 243), assault with force likely to cause
great bodily injury (§ 245, subd. (a)(4)), kidnapping (§ 207, subd. (a)), false
imprisonment by violence (§§ 236, 237), driving under the influence (Veh. Code,
§ 23152, subd. (a)), driving with a blood-alcohol level of 0.08 percent or higher (Veh.
Code, § 23152, subd. (b)), unlawfully operating a motor vehicle (Veh. Code, § 23247;
count 8), and driving on a suspended license (Veh. Code, § 14601.2, subd. (a)).
The jury also found, as to counts 1, 3, 4, and 5, that defendant personally inflicted
great bodily injury under circumstances involving domestic violence. (§ 12022.7, subd.
(e).) As to counts 6 and 7, it found defendant had refused a chemical test, had a 0.15
percent or higher blood-alcohol level, and committed a prior DUI related offense. (Veh.
Code, §§ 23577, 23578, 23582.) As to count 1, the parties stipulated defendant was
previously convicted of inflicting corporal injury. (§ 273.5, subd. (f).) And the trial court
found defendant had suffered a prior DUI related conviction. (Veh. Code, § 23540.)
The trial court sentenced defendant to an aggregate term of 13 years, comprised of
eight years for kidnapping plus five years for the great bodily injury enhancement. It also
6 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
6
imposed concurrent 180-day terms for unlawfully operative a motor vehicle and for
driving on a suspended license. Various terms were imposed on the other counts, and
stayed pursuant to section 654.
DISCUSSION
I. Instruction Error
On appeal, defendant contends the trial court erred in instructing the jury with
CALCRIM No. 361, regarding the failure to explain or deny adverse testimony.
Defendant maintains he never failed to explain or deny evidence that he could reasonably
have been expected to deny or explain, and his testimony had no significant omissions
concerning Evidence Code section 1109 testimony. We agree but find the error harmless.
A. Additional Background
At trial, the prosecution offered, under Evidence Code section 1109, evidence of
defendant’s other domestic violence acts. The evidence was presented through testimony
of two former girlfriends of defendant.
1. The First Former Girlfriend
The first former girlfriend testified she had had a two-year “on and off”
relationship with defendant beginning in 2007, and they had a son together. In early
2009, when they were separated, defendant yelled at her, threatened to kill her, and
“socked” her face. That evening, defendant called and threatened to kill her and her
brother.
Six months later, defendant came to her house. He demanded to be let in to see
his son. When she refused, he threw chairs and banged the door and window. She hid in
a bedroom closet and called the police. While hiding, she heard defendant threaten to kill
her brother. Defendant broke down her door and came inside, but he eventually left.
When he was arrested, he appeared intoxicated.
On cross-examination, defense counsel asked the former girlfriend about arrests in
2007 and 2008 for battery against defendant. She denied any memory of them but
7
conceded that in 2007 she and defendant had been going to court over custody of their
son. And in 2009, the son had been removed from her custody; defendant ended up with
primary custody. She currently has custody, but in 2014 the court ordered shared
custody.
2. The Second Former Girlfriend
The second former girlfriend testified she started dating defendant in early 2009.
Four months later, she got into an argument with an acquaintance at a local bar and ended
up punching the acquaintance. The second former girlfriend went home, and defendant
showed up. He was “very agitated” and angry with her because the acquaintance was
going to be a witness for him in a child custody matter.
Defendant asked the second former girlfriend to apologize, but she refused. That
angered defendant. Defendant “full force shoved” her down onto her front steps. When
she tried to get up, he shoved her down “even harder.” She fell on the step again and hit
her head on the wall. Defendant grabbed a piece of carpet, threw it over her, and started
hitting her. The attack ended when the front door was opened by her daughter, and the
second former girlfriend fell over the threshold. Defendant ran away, and the police were
called.
The parties stipulated that defendant was convicted of corporal injury to the
second former girlfriend.
3. Defendant’s Testimony about the Evidence Code section 1109 Evidence
When he testified, defendant claimed his relationship with the first former
girlfriend was “[t]oxic, [and] dangerous” due to drugs and alcohol. He added that, as to
the drugs and alcohol, “in the beginning it was both of us. At the end it was primarily
[her].”
As to the second former girlfriend, he testified their relationship was “great until
the end,” when she “picked a fight with a really good friend of mine . . . ending in an
altercation [outside a bar].” According to defendant, the acquaintance had told him the
8
second former girlfriend was lying to him. Asked why he entered a plea, defendant
explained: “Because my son was taken from his mother and placed in Children and
Family Services and I was given six months for reunification . . . .” He added, “I
couldn’t risk losing my son forever . . . and if I had lost the . . . case with [the second
former girlfriend], I would have lost my son. So I took the plea with the district attorney
for six months so that I can begin reunification with Children and Family Services.” The
plea allowed him to receive probation and avoid incarceration. During probation, he took
and completed classes, including “The Batterer’s Program.” It taught him to recognize
and address anger as well as to avoid toxic relationships.
On cross-examination, he admitted going to the second former girlfriend’s house
after her fight with the acquaintance. He also admitted telling an officer he had been
drinking heavily, had passed out, and he should not have gone to her house.
4. Jury Instruction Conference
The prosecutor asked the trial court to instruct the jury with CALCRIM No. 361,
which provides: “If the defendant failed in his testimony to explain or deny evidence
against him and if he could reasonably be expected to have done so based upon what he
knew, you may consider his failure to explain or deny in evaluating that evidence. Any
such failure is not enough by itself to prove guilt. The People must still prove the
defendant guilty beyond a reasonable doubt. If the defendant failed to explain or deny, it
is up to you to decide the meaning and importance of that failure.”
The trial court noted the instruction involves the failure to explain or deny, and as
to defendant’s testimony, “we have a different version of what happened [—] that’s
different from a failure to explain or deny evidence against him.”
The prosecutor responded that the instruction was appropriate, noting, “there are
portions of [defendant’s] statement that did not explain or deny certain crimes and some
of the 1109 prior evidence.” She added that defendant “didn’t really offer any testimony
regarding the incidents that [the first former girlfriend] testified about” and “[h]e did not
9
address really what happened between he and [the second former girlfriend] that resulted
in her injuries.”
Defense counsel agreed that defendant did not explain or deny the allegations of
abuse concerning the first and second former girlfriend but argued it was inappropriate to
give the instruction solely based on the prior domestic violence evidence because the
instruction does not distinguish between testimony pertaining to the charged offenses and
testimony pertaining to the Evidence Code section 1109 evidence.
The trial court agreed to give the instruction, explaining that as to the first victim,
“he talked about the nature of their relationship. He didn’t say anything about the
evidence of domestic violence. So arguably there is a failure to explain or deny that
evidence.” As to the DUI, “He did not deny the driving under the influence, so that is a
failure to deny.”7
The court thereafter instructed the jury with CALCRIM No. 361. During closing
arguments, the prosecutor made no mention of that instruction, though in referenced to
the second former girlfriend’s testimony and defendant’s subsequent conviction, she told
the jury, “[h]e didn’t admit that he did anything wrong but he didn’t exactly deny it
either.”
B. Analysis
On appeal, defendant argues he did not fail to explain or deny evidence that he
could reasonably have been expected to deny or explain, and his testimony had no
significant omissions concerning the Evidence Code section 1109 testimony. And while
his testimony differed from the prosecution’s evidence, a contradiction is not a failure to
explain or deny.
7 Defense counsel replied that defendant had admitted the DUI charges and thus it could
not constitute a failure to deny.
10
The People respond that the instruction was proper because defendant failed to
explain or deny allegations of domestic violence involving the former girlfriends, noting
as to the first former girlfriend, defendant said only that their relationship was toxic and
dangerous. As to the second, he said only that the relationship was great until the end
and that he plead in order to seek reunification with his son.8
We agree with defendant that the instruction was unwarranted. Nevertheless, the
error was harmless.
CALCRIM No. 361 may be given “only when a defendant completely fails to
explain or deny incriminating evidence, or claims to lack knowledge and it appears from
the evidence that the defendant could reasonably be expected to have that knowledge.”
(People v. Cortez (2016) 63 Cal.4th 101, 117, italics added.) Mere contradictions
between a defendant’s testimony and other witnesses’ do not suffice. (People v. Lamer
(2003) 110 Cal.App.4th 1463, 1469.) Nor is it enough that the defendant’s testimony is
not believable — no matter how “improbable, incredible, unbelievable, or bizarre” the
explanation may be. (Cortez, at p. 117.)9
However, such instruction has been held proper in instances where a defendant’s
testimony (1) denied committing three charged rapes but failed to mention uncharged
offenses that had been ruled relevant to common scheme or plan; (2) presented an alibi as
to only two of four charged robberies; and (3) denied committing one charged rape but
8 The People take no position on whether defendant’s testimony as to the misdemeanor
vehicle code charges would obligate the instruction. As to those, we simply note that
defendant testified that he knew he should not drive, but still felt comfortable driving
because he had had only four ounces of alcohol. He also testified the bulk of his drinking
was done after he stopped driving.
9Lamer addressed CALJIC No. 2.62. “CALCRIM No. 361 is similar in content to
CALJIC No. 2.62.” (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066.)
11
failed to testify regarding two uncharged sexual assaults. (People v. Saddler (1979)
24 Cal.3d 671, 681 [discussing CALJIC No. 2.62].)
In reviewing a challenge to a CALCRIM No. 361 instruction, our task is “ ‘to
ascertain if the defendant failed to explain or deny any fact of evidence that was within
the scope of relevant cross-examination” and was “within the defendant’s knowledge
which he . . . did not explain or deny.’ ” (People v. Grandberry (2019) 35 Cal.App.5th
599.)
Here, it cannot be said that defendant completely failed to explain or deny the
evidence of the uncharged domestic violence. As to the first former girlfriend, defendant
explained that the relationship was “[t]oxic, [and] dangerous” due to drugs and alcohol
and suggested that the former girlfriend bore most of the responsibility for it: “in the
beginning it was both of us. At the end it was primarily [her].” That testimony
dovetailed with defense counsel’s cross-examination of the first former girlfriend, which
implied that the fighting and her testimony was motivated by a custody dispute. Whether
defendant’s explanation (essentially admitting the allegation, but casting blame on the
victim) could be considered believable or complete is beside the point. He was not silent
and therefore it did not warrant the instruction.
Similarly, as to the second former girlfriend, defendant testified that he pled to the
offense to avoid incarceration because he couldn’t risk losing his son — essentially
admitting the incident but implying mitigating circumstances existed. He suggested it
was the victim’s fault, noting that she started it by picking a fight with a good friend of
his, and implying their toxic relationship was the cause, noting the batterers’ class taught
him to “stay away from toxic relationships . . . .” Again, this explanation may be neither
credible nor complete, but it did not constitute a complete failure to explain or deny.
Accordingly, instructing with CALCRIM No. 361 was error. That error, however,
was harmless.
12
Defendant submits the error must be reviewed under the Chapman10 standard.
Courts, however, have applied the more deferential Watson11 standard when evaluating
error for an erroneous instruction with CALJIC No. 2.62, CALCRIM No. 361’s
predecessor. (See e.g., People v. Saddler, supra, 24 Cal.3d at p. 683; People v. Lamer,
supra, 110 Cal.App.4th at p. 1471.) Regardless, the error here was harmless under either
standard.
Overwhelming evidence supported the finding of guilt. The victim’s testimony
implicating defendant was corroborated in multiple respects. Immediately after the
incident, she told a responding officer defendant had attacked her. Her description of the
attack then was consistent with her later trial testimony. Blood was found inside
defendant’s SUV. This was consistent with the victim’s testimony that defendant had
punched her repeatedly. The boss’s testimony also corroborated the victim’s —
describing defendant as belligerent at the bar, and recalling the victim scream over the
phone as if “she was scared to death,” while defendant claimed he couldn’t find her.
By comparison, defendant’s testimony defied credulity on its face and was
contradicted at several points. His attempt at trial to foist blame on the victim was
contradicted by his own statements to officers and to his boss, blaming the ex-husband.
His testimony that the victim said she was fine and did not appear injured after she
jumped from the car was contradicted by a paramedic’s testimony describing the victim’s
grievous injuries. And defendant’s claim that he never punched the victim was
contradicted by the blood found in his SUV.
Moreover, the instruction largely inured to defendant’s benefit. Though we agree
with defendant that, as a matter of law, the instruction was unwarranted, if a juror
10 Chapman v. California (1967) 386 U.S. 18.
11 People v. Watson (1956) 46 Cal.2d 818.
13
nevertheless concluded that defendant had failed to adequately explain or deny the
uncharged acts of domestic violence, the instruction would have simply admonished the
juror that such a failure cannot alone establish guilt, and that the People must still prove
the elements of the offense. (See People v. Rodriguez, supra, 170 Cal.App.4th at
p. 1067.)
In sum, the error was harmless under any standard of prejudice.
II. Imposition of Fines and Fees
Defendant also contends remand is required to allow the trial court to conduct an
ability to pay hearing. We disagree.
A. Additional Background
At sentencing, the trial court imposed fines and fees including a $10,000
restitution fine (§ 1202.4, subd. (b)), a $360 court operations assessment (§ 1455.8, subd.
(a)(1)) and a $270 conviction assessment (Gov. Code, § 70373). The probation report
had recommended fines and fees in that amount. Defendant raised no objection to them.
While this appeal was pending, defendant, in pro per, filed an ex-parte motion
with the trial court to stay his fines and fees in light of People v. Dueñas (2019) 30
Cal.App.5th 1157 (Dueñas). He wrote that he was indigent when sentenced and remains
indigent while incarcerated, and the fines and fees present a “financial impossibly” and
an undue burden.
The trial court denied the motion, concluding that defendant forfeited any
challenge to the imposition of fines and fees by failing to object at sentencing. The court
noted that, “[a]s the sentencing court was aware of Defendant’s future in state prison, the
sentencing court was aware of Defendant’s ability to pay the fine.”
Defendant appealed from that order. We consolidated that appeal with his original
appeal.
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B. Analysis
On appeal, defendant argues the imposition of the $10,000 restitution fine, the
$360 operations assessment, and the $270 conviction assessment was unconstitutional.
In support, he cites Dueñas, supra, 30 Cal.App.5th at pages 1168, 1172, which held that
due process requires the trial court to stay execution of restitution fines, as well as court
operation and conviction assessments, until it has held a hearing and determined the
defendant has the present ability to pay.
The People respond that defendant has forfeited the challenge for failure to raise
the claim at sentencing.12 We agree with the People.
While defendant’s sentencing predated Dueñas by several years, he still had cause
to raise an ability to pay challenge at sentencing. Under section 1202.4, in effect at the
time of sentencing, the trial court could consider a defendant’s ability to pay when
imposing more than the minimum fine. (See § 1202.4, subd. (c) [“Inability to pay may be
considered only in increasing the amount of the restitution fine in excess of the minimum
fine”].) And prior to sentencing, the probation report had recommended imposing the
maximum restitution fine of $10,000. Yet defendant did not contest his ability to pay in
the trial court.
Courts have held that where a defendant is sentenced pre-Dueñas, and fails to raise
an ability to pay change when the trial court imposes more than the minimum restitution
fine, that forfeits a future ability to pay challenge as to the restitution fine as well as to the
operation and conviction assessments. (See People v. Frandsen (2019) 33 Cal.App.5th
1126, 1154 [“Given his failure to object to a $10,000 restitution fine based on inability to
12 The People note that the trial court lacked jurisdiction to consider defendant’s Dueñas
challenge while this appeal was pending. Nevertheless, the People ask that we construe
the brief filed in the subsequent appeal as a supplemental brief, in lieu of dismissing the
second appeal. We will do so.
15
pay, Frandsen has not shown a basis to vacate assessments totaling $120 for inability to
pay”]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [“As a practical matter, if
Gutierrez chose not to object to a $10,000 restitution fine based on an inability to pay, he
surely would not complain on similar grounds regarding an additional $1,300 in fees”].)
We similarly conclude that because defendant failed to raise an ability to pay
challenge when the trial court imposed the maximum restitution fine of $10,000, he has
forfeited his ability to pay challenge in light of Dueñas.
Moreover, even if defendant had not forfeited his Dueñas claim, we would reject it
on the merits, joining the courts that have concluded Dueñas was wrongly decided.
Defendant was not entitled to an ability to pay hearing. (People v. Kingston (2019) 41
Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, review granted Nov.
26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055; People v. Caceres
(2019) 39 Cal.App.5th 917, 923-929.)
DISPOSITION
The judgment is affirmed.
/s/
MURRAY, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
HULL, J.
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