Filed 3/7/14 P. v. Larson CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063069
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD 235068,
SCD 219125)
JOSHUA JAMES LARSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Theodore
M. Weathers, Judge. Affirmed.
Michael Bacall, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant
Attorneys General, Charles C. Ragland, Kimberley A. Donohue, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury convicted Joshua James Larson of second degree murder (Pen. Code,1
§ 187, subd. (a)); assault with a deadly weapon by means of force likely to cause great
bodily injury (§ 245, subd. (a)(1)); and threatening a witness (§ 140). The jury found true
allegations that in committing the murder and assault, Larson personally used a deadly
weapon. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The court sentenced Larson to a
total term of 19 years to life in state prison.
Larson contends the court: (1) violated his constitutional right to present a defense
by precluding him from introducing certain third party culpability evidence; and (2)
prejudicially erred by denying his request to instruct the jury regarding involuntary
manslaughter. We affirm the judgment.
FACTUAL BACKGROUND
On June 22, 2011, Nathan Meza and his boyfriend Jason Huggins, also known as
Cowboy, were living in a tent in a San Diego canyon. They spent that day together
visiting different places for meals, medications and clothes. That afternoon, as they were
going to a fast food restaurant, they encountered Larson and another man. Meza testified
that Huggins exchanged words with one of the men. Huggins and Meza continued to the
restaurant. Minutes later, Larson followed them inside the restaurant. Huggins and Meza
ordered their food and left with it to return to their tent.
After a few minutes, Larson appeared at their tent. Huggins said, "Oh no," in a
worried tone of voice. Larson, referring to Huggins, told Meza something like: "You
1 All statutory references are to the Penal Code unless otherwise stated.
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know this little shit right here you're with? He accused me in court." Larson asked,
"Have you ever felt what a rock in the face feels like?" At that, Larson threw a large rock
inside the tent, hitting Meza's face and knee. Larson walked around the tent, flicking a
cigarette lighter and threatening to burn them. Larson threw his body against the tent,
and Meza and Huggins struggled to prevent the tent from collapsing. Meza left the tent
and saw Larson holding Huggins in a chokehold as they fought. Meza asked what was
happening, and told Larson not to kill Huggins. Larson said something like, "I'm not
going to hurt him. I just want to scare him." Larson warned Meza to get away from the
scene.
Meza left the canyon, not thinking the fight would cause Huggins grave injuries or
his death. Meza went to a hospital and received stitches for his injuries. That night,
Meza initially lied to police, telling them the fight had occurred behind a grocery store
near the canyon. Meza later explained he had lied because he was afraid to further anger
one of the older residents of the canyon who he had previously angered by bringing a
stranger to the canyon.
Judy Bryant, who also lived in the canyon, testified that Larson went to the canyon
that evening asking for Huggins's tent, and she directed Larson to it. Bryant then went to
the store, and upon leaving, she saw Huggins waving his arms and asking for help.
Huggins seemed like he was going to pass out, and he said a man had hit him with a rock.
Shortly after 6:00 p.m. that day, a fire captain, a paramedic, and an emergency
medical technician attended to Huggins near the grocery store. Huggins was agitated and
uncooperative, screaming that he was hit by a rock and his head hurt. Huggins also
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repeatedly asked for Meza. Huggins said he knew who had hit him with the rock, but did
not disclose his attacker's name. Huggins had no outward bleeding on his head or signs
of trauma. He was taken to the hospital.
Medical personnel discovered Huggins had a fracture to the head and a hematoma
or bleeding inside the skull. He was operated on to relieve the pressure from the
hemorrhage, but never recovered. Huggins died on July 6, 2011, after he had been in a
coma for approximately two weeks. A pathologist testified that Huggins had bruises on
his body that were consistent with him being punched. His cause of death was head
injury, and the manner of death was homicide.
Surveillance images taken at the restaurant showed Huggins and Meza had arrived
there at approximately 4:41 p.m., followed shortly thereafter by Larson. Other
surveillance images taken from cameras mounted on a condominium building recorded
Huggins and Meza walking toward the canyon, and Larson following shortly afterwards.
The condominium cameras also captured Huggins leaving the Canyon after the attack.
A criminal investigator analyzed Larson's cell phone call records for June 22,
2011, and concluded calls were made to and from that phone while it was in the vicinity
of the restaurant and the canyon around the relevant times.
Police arrested Larson and retrieved from his house items of clothing matching
those he was seen wearing on the day of the crime. Upon Larson's arrest, a detective told
him he was a suspect in a very serious crime that had caused moderate injuries to one
victim and severe injuries to another victim. Approximately an hour and a half later,
Larson asked the detective for the names of the victims, and which one was severely
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injured. The detective identified Huggins as being severely injured. Larson bowed his
head and did not respond.
The parties stipulated that in February 2009, Huggins had reported to police that
Larson had robbed him of his wallet. Larson was arrested and charged with grand theft
from a person. In March 2009, Huggins testified against Larson at trial on that matter.
Larson pleaded guilty to the crime and spent 88 days in jail. In February 2011, Larson
served jail time for violating probation by testing positive for drugs. He was released
from custody on May 4, 2011.
The jury heard audio recordings of Larson's jailhouse phone calls to his parents
shortly after his arrest. In one call, Larson described Huggins as having "showed up at
court, pointed the finger at me, and said, 'This is the guy who sold me drugs and, uh, uh,
stole my wallet and whatever." Larson's mother responded, "Mm-hmm. So obviously
what you told me earlier about letting all that go really wasn't true." Larson replied,
"Then it was let go." Larson also admitted in a phone call that he had seen Huggins at the
fast food restaurant. Larson continued: "[I]t didn't seem like he recognized me or
anything, and so I was going to leave him alone. And I don't know if I can say anything
more than that right now." Larson recounted to his mother that somebody had asked him,
"Why'd you do it?" Larson's reaction to that question was, ". . . like I killed this guy on
purpose or something. You know? What difference is it gonna make? My life is over."
At trial, Chandice Lucas denied killing Huggins or having previously confessed to
doing so. Lucas also denied having had a sexual or dating relationship with Huggins.
Rather, Lucas testified that he and Huggins were friends, and in some ways had a father-
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son type relationship. Lucas testified that on the day before the crime, he had told
Huggins that in order for Huggins to get off the streets and join Lucas in a business
venture, Huggins would have to get rid of Meza. Although Lucas acknowledged telling
an investigator that that conversation with Huggins had occurred on June 22, 2011, he
clarified that the conversation with Huggins had happened one day earlier. Lucas
admitted that one day when Huggins was in a coma, he met Meza at the hospital, pushed
Meza against a wall, insisted he go to a drug rehabilitation center, and threatened to "beat
his butt because he left [Huggins in the canyon] to die."
After the close of evidence and just before closing arguments, a juror asked the
court about Lucas's whereabouts on June 22, 2011, between 5:00 p.m. and 6:30 p.m. The
court discussed the issue with counsel and stated that Lucas had been excused as a
witness and it was too late to address the juror's question.
DISCUSSION
I.
Larson argues the trial court should have permitted him to present additional third
party evidence that Lucas was the purported killer, contending: "The trial court
erroneously precluded the defense from introducing evidence that [Lucas] and [Huggins]
were selling HIV medicine for cash and/or methamphetamine and that [Lucas] was angry
with [Huggins] because [Huggins] gave [Lucas] no money to pay the supplier. The
evidence was more probative than prejudicial under Evidence Code section 352." (Italics
omitted.)
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A. Background
The People moved in limine to exclude the proffered third party culpability
evidence on grounds it was speculative. At a hearing held under Evidence Code section
402, the prosecutor argued: "This evidence is incompetent hearsay and is inadmissible.
Further, the defense has proffered no evidence of any person with a particular motive to
kill Huggins as it relates to his alleged HIV medication business. There is no direct or
circumstantial evidence linking any person to the alleged HIV medication business and
the death of Huggins."
Defense counsel countered that there was testimony supporting the assertion that
Lucas and Huggins were involved in the sale of HIV medications. Defense counsel also
noted that one witness had testified that Lucas had angrily argued with Huggins over
monies Huggins allegedly owed Lucas.
The prosecutor rebutted defense counsel's theories regarding third party
culpability, pointing out that there was no cell phone evidence placing Lucas near the
canyon between 3:00 p.m. and 6:00 p.m. on the day of the crime. The prosecutor argued:
"The fact that there was money owed over drugs—even if that were true, and there was
some anger, I still think that that's a huge leap, to say that that provides a motive for the
killing in this case."
The court partially ruled in Larson's favor, permitting him to question Lucas
whether Huggins had owed him money. However, the court excluded testimony
regarding Huggins's alleged sale of HIV medication, ruling, "I think that is not
particularly probative. I think it's highly prejudicial. I think it would result in a mini-trial
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within this trial. I think it would result in undue consumption of time, and I don't think
it's particularly probative. [¶] This notion that Mr. Huggins owed unnamed people in
Los Angeles, I think is so far removed and speculative as to not fall within the [standard
set forth in People v. Hall (1986) 41 Cal.3d 826 (Hall) regarding] admissibility.
Similarly, the testimony . . . about these individuals involved in sales of drugs and then
leading to HIV medication, I think is, once again, not particularly probative."
B. Applicable Law
In Hall, supra, 41 Cal.3d 826, the California Supreme Court explained the criteria
for admitting third party culpability evidence: "To be admissible, the third-party
[culpability] evidence need not show 'substantial proof of a probability' that the third
person committed the act; it need only be capable of raising a reasonable doubt of
defendant's guilt. At the same time, we do not require that any evidence, however
remote, must be admitted to show a third party's possible culpability. . . . [E]vidence of
mere motive or opportunity to commit the crime in another person, without more, will not
suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or
circumstantial evidence linking the third person to the actual perpetration of the crime.
[¶] . . . [¶] . . . [C]ourts should simply treat third-party culpability evidence like any
other evidence: if relevant it is admissible [citation] unless its probative value is
substantially outweighed by the risk of undue delay, prejudice, or confusion [under
Evidence Code section 352]." (Hall, at pp. 833-834.) The trial court's discretionary
ruling under Evidence Code section 352 may not be disturbed absent a showing that the
court abused its discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372-373.)
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C. Analysis
The court did not abuse its discretion in excluding testimony regarding Lucas and
Huggins's involvement in the sale of HIV medication. Under Hall, supra, 41 Cal.3d 826,
the proffered testimony did not provide direct or circumstantial evidence linking Lucas to
the actual perpetration of the murder. Rather, at best, it would point to motive or
opportunity, but that does not suffice to admit such third party culpability evidence. The
court reasonably concluded the challenged testimony would consume too much time and
lead to a trial within a trial. Further, we note that the topic of the sale of HIV medication
in exchange for methamphetamine is a highly prejudicial one, and it had no probative
value in this case.
Even assuming error, the court did not act arbitrarily when it compromised by
permitting the defense to ask Lucas about the relevant issue of whether Huggins had
owed him money. "Because the trial court merely rejected some evidence concerning a
defense, and did not preclude defendant from presenting a defense, any error is one of
state law and is properly reviewed under [People v. Watson (1956) 46 Cal.2d 818, 836
(Watson)]." (People v. McNeal (2009) 46 Cal.4th 1183, 1203.)
In applying the Watson, supra, 46 Cal.2d 818 standard of prejudice, we follow the
California Supreme Court's guidance in People v. Breverman (1998) 19 Cal.4th 142, 153-
154 (Breverman): "Appellate review under Watson . . . focuses not on what a reasonable
jury could do, but what such a jury is likely to have done in the absence of the error under
consideration. In making that evaluation, an appellate court may consider, among other
things, whether the evidence supporting the existing judgment is so relatively strong, and
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the evidence supporting a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant complains affected the result."
(Breverman, at p. 177.)
We conclude that overwhelming circumstantial evidence supported Larson's
conviction. Larson placed himself at the restaurant just minutes before the crime
occurred, relating in a jailhouse conversation that he saw Huggins there. He recalled
Huggins had testified against him. Larson asked directions to Huggins's tent, and threw a
rock in the tent, hitting Meza. Afterwards, Meza saw Larson fight with Huggins.
Huggins told the first responders that he was hit with a rock. The jury was instructed
regarding adoptive admissions, which was relevant for Larson's reaction to the detective's
statement that Larson was suspected of having caused severe injuries to Huggins; Larson
did not deny the claim but remained silent. As noted, the testimony on critical matters
was corroborated by Larson's phone records and images from surveillance cameras
located at the restaurant and the condominium.
By contrast, the evidence assertedly implicating Lucas was weak. At trial, the
defense premised its case on Lucas having visited the canyon around the time of the
crime. The defendant argues the same on appeal, pointing out that one juror had asked
about Lucas's whereabouts around the time of the incident. However, that question came
before jury deliberation, and the jury did not renew it. Further, the jury heard Lucas
testify that he was mistaken about the date he went to see Huggins, and that in fact he did
not go to the canyon on the day of the crime. Lucas testified he did not kill Huggins.
The jury was able to evaluate Lucas's demeanor and credibility, and by its verdict elected
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to believe him. Thus even if we were to assume some error, on this record, it is not
reasonably probable that the jury would have reached a result more favorable to Larson
absent the exclusion of the challenged testimony regarding the sale of HIV medications.
II.
Larson contends the court prejudicially erred by declining his request that it
instruct the jury regarding involuntary manslaughter.
A. Background
In proceedings outside of the presence of the jury, Larson's counsel argued for an
instruction regarding involuntary manslaughter: "The evidence hasn't clearly depicted
exactly what happened in the canyon and by who. There's no witness that actually sees
anybody hit Mr. Huggins in the head with a rock. And it's certainly possible that the jury
could conclude that he was hit in the head with a rock. But not necessarily with the intent
to kill. Maybe injured by punches, maybe by falling on a collapsed tent and injuring his
head. These could all rise to the level of criminal negligence without rising to the level
of, necessarily, the intent to kill. [¶] . . . [¶] It's certainly possible that if the jury
concludes that there was a strike in the head with a rock, that it wasn't with intent to kill,
but it was with disregard for human life and indifference to the consequences. They
could also conclude that when the men collapsed on the tent, there was a head injury as a
result of this fighting, this indifference to the consequence of . . . the fight and injury as
sustained to Mr. Huggins' head, and as a result, he later passes away."
The prosecutor opposed the instruction, pointing out the defense theory was
someone else, not Larson, had killed Huggins. The prosecutor further argued substantial
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evidence was presented from the first responders and others who testified Huggins had
said he was hit with a rock. Also, the evidence showed Larson had planned the attack on
Huggins and had a motive for doing so, namely, in retaliation for Huggins's trial
testimony against Larson.
The court agreed with the prosecutor and declined to instruct the jury regarding
involuntary murder, ruling that the evidence did not support that instruction.
B. Applicable Law
"California statutes have long separated criminal homicide into two classes, the
greater offense of murder and the lesser offense of manslaughter. The distinguishing
feature is that murder includes, but manslaughter lacks, the element of malice." (People
v. Rios (2000) 23 Cal.4th 450, 460.) Murder is the unlawful killing of a human being
"with malice aforethought." (§ 187, subd. (a); People v. Knoller (2007) 41 Cal.4th 139,
151 (Knoller); People v. Blakeley (2000) 23 Cal.4th 82, 87 (Blakeley).) Express malice is
an unlawful intent to kill. (§ 188.) Malice is express "when the defendant manifests 'a
deliberate intention unlawfully to take away the life of a fellow creature.' " (Blakeley, at
p. 87.) "Implied malice" requires a defendant's awareness of engaging in conduct that
endangers the life of another. (Knoller, at p. 143.) "Malice is implied when the killing is
proximately caused by ' "an act, the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who knows that his conduct endangers
the life of another and who acts with conscious disregard for life." ' " (Ibid.)
Manslaughter is the "unlawful killing of a human being without malice." (§ 192;
Blakeley, supra, 23 Cal.4th at p. 87.) A defendant who commits an intentional and
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unlawful killing but who lacks malice is guilty of voluntary manslaughter. (See
Breverman, supra, 19 Cal.4th at pp. 153-154.) However, a specific intent to kill is not
a necessary element of manslaughter. (Blakeley, at pp. 88-89.) Involuntary manslaughter
is the unlawful killing of a human being without malice "in the commission of an
unlawful act, not amounting to felony; or in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and circumspection."
(§ 192, subd. (b).) Involuntary manslaughter based on "an unlawful act, not amounting to
felony"—a killing resulting from the commission of a misdemeanor—requires proof not
only that the defendant acted with general criminal intent but also that the predicate
misdemeanor was dangerous to human life under the circumstances of its commission.
(People v. Cox (2000) 23 Cal.4th 665, 667, 675-676; People v. Wells (1996) 12 Cal.4th
979, 982.) Involuntary manslaughter based on the commission of a lawful act that might
produce death "without due caution and circumspection" requires proof of criminal
negligence—that is, "aggravated, culpable, gross, or reckless" conduct that creates a high
risk of death or great bodily injury and that evidences a disregard for human life or
indifference to the consequences of the conduct. (See People v. Penny (1955) 44 Cal.2d
861, 879; People v. Evers (1992) 10 Cal.App.4th 588, 596.)
Instructions on lesser included offenses must be given when there is substantial
evidence for a jury to conclude the defendant is guilty of the lesser offense but not the
charged offense. (Breverman, supra, 19 Cal.4th at p. 177.) Substantial evidence is
defined for this purpose as "evidence sufficient to 'deserve consideration by the jury,' that
is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12
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Cal.4th 186, 201, fn. 8.) "In deciding whether evidence is 'substantial' in this context, a
court determines only its bare legal sufficiency, not its weight." (Breverman, at p. 177.)
Here, the court instructed the jury with CALCRIM No. 520 (murder with malice
aforethought) and CALCRIM No. 521 (first degree murder). During jury deliberations,
in response to a jury question seeking clarification regarding second degree murder, the
court further instructed the jury: "CALCRIM [Nos.] 520 and 521 set forth the elements
of first degree murder. All other murders are of the second degree. [¶] To prove that the
defendant is guilty of second degree murder, the People must prove that: [¶] 1. The
defendant committed an act that caused the death of another person, and [¶] 2. When
the defendant acted, he had a state of mind called malice aforethought. [¶] For second
degree murder there are two kinds of malice aforethought, express malice and implied
malice. The definition of each is set forth in CALCRIM [No.] 520. [¶] Malice
aforethought does not require hatred or ill will toward the victim. It is a mental state that
must be formed before the act that causes death is committed. It does not require
deliberation or the passage of any particular period of time."
An involuntary manslaughter instruction was not warranted under the facts of this
case. An instruction on a lesser included offense is not required if the evidence was such
that the defendant, if guilty at all, was guilty of the greater offense. (People v. Kelly
(1990) 51 Cal.3d 931, 959.) A manslaughter theory requires the killing be committed
without malice (People v. Cook (2006) 39 Cal.4th 566, 596), whereas the evidence in this
case showed implied malice. As explained above, malice is implied " 'when the killing
results from an intentional act, the natural consequences of which are dangerous to life,
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which act was deliberately performed by a person who knows that his conduct endangers
the life of another and who acts with conscious disregard for life.' " (People v. Lasko
(2000) 23 Cal.4th 101, 107 (Lasko); People v. Swain (1996) 12 Cal.4th 593, 602.) A
defendant acts with implied malice when he acts with an awareness of endangering
human life. (Knoller, supra, 41 Cal.4th at pp. 143, 153.)
A defendant's intent is rarely susceptible of direct proof, and may be inferred from
the facts and circumstances surrounding the offense. (People v. Ramos (2004) 121
Cal.App.4th. 1194, 1207-1208.) Here, the jury could reasonably find Larson acted with
malice based on his conduct immediately before he hit Huggins with a rock: Larson
elected to follow Huggins to the canyon. He specifically asked for directions to
Huggins's tent, and picked a fight with him, referring to Huggins as "a little piece of shit"
who had testified against him. Larson specifically asked Meza and Huggins if they knew
how it felt to be hit with a rock, and proceeded to throw an eight-inch rock into the tent.
Larson also threatened to burn their tent. In light of Larson's recognition that hitting
someone with a rock would cause injury, the jury's only reasonable inference was that
Larson acted with malice because he hit Huggins's head with a rock, knowing it could
endanger Huggins's life.
In any event, we would conclude there was no prejudice to Larson from any
instructional error. "[W]hen a trial court violates state law by failing to properly instruct
the jury on a lesser included offense, this test applies: '[I]n a noncapital case, error in
failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and
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theories thereof which are supported by the evidence must be reviewed for prejudice
exclusively under [Watson, supra, 46 Cal.2d at p. 836]. A conviction of the charged
offense may be reversed in consequence of this form of error only if, "after an
examination of the entire cause, including the evidence" (Cal. Const., art. VI, § 13), it
appears "reasonably probable" the defendant would have obtained a more favorable
outcome had the error not occurred.' " (Lasko, supra, 23 Cal.4th at p. 111.)
Based on our review of the record, if the trial court erred by failing to instruct the
jury regarding involuntary manslaughter, that error was harmless under Watson, supra,
46 Cal.2d 818. Our prejudice analysis set forth above applies equally here. We note that
Larson concedes in his opening brief that the evidence supported his identity as Huggins's
attacker: "While the defense attorney presented the best possible defense that [Lucas]
was the killer, there was evidence that it was Larson who struck [Huggins] with the rock,
albeit without malice or intent to kill. The [restaurant's] surveillance camera recorded
Larson leaving the restaurant shortly after [Huggins] and Meza. Judy Bryant and
Maurice Daniels saw Larson walk down the hill toward the campsite. Meza testified that
Larson threw a rock at him inside their tent. A minute later, Meza saw Larson and
[Huggins] fighting."
However, Larson argues he did not "subjectively appreciate the risk to [Huggins's]
life when he struck him with the rock." As evidence of that, Larson notes that he had told
Meza he was not going to hurt Huggins, but simply scare him. Also, he had told his
mother by phone that he did not kill Huggins on purpose. The jury evaluated that
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evidence regarding Larson's intent, but still convicted him of second degree murder. We
may not reweigh that testimony on appeal. We conclude the jury would not likely have
reached a more favorable verdict absent any instructional error.
Larson relies on Justice Kennard's concurrence in People v. Bryant (2013) 56
Cal.4th 959. We need not discuss that claim further because one justice's concurrence
lacks precedential value. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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