Filed 11/16/20 In re O.L. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
In re O.L., a Person Coming Under the Juvenile Court C090726
Law.
THE PEOPLE, (Super. Ct. No. JV138462)
Plaintiff and Respondent,
v.
O.L.,
Defendant and Appellant.
The minor, O.L., appeals the juvenile court’s order committing him to the Division
of Juvenile Justice (the Division), arguing: (1) substantial evidence does not support the
allegation that he violated his probation by failing out of his level B placement; (2) the
trial court erred under Evidence Code section 352 in allowing a gang expert to testify at
the disposition hearing; and (3) the trial court erred in committing the minor to the
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Division rather than returning him home to live with his mother. We affirm the trial
court order.
FACTS AND PROCEDURAL HISTORY
The Initial Petition
The People’s February 16, 2017, wardship petition alleged the minor, who was
then 14 years old, had violated the law by: carrying a loaded firearm in a vehicle while in
a public place and of which he was not the registered owner (Pen. Code, § 25850, subds.
(a), (c)(6); count one), undesignated section references are to the Penal Code; carrying a
concealed firearm (§ 25400, subd. (a)(3); count two); unlawful possession of a firearm
capable of concealment by a minor (§ 29610; count three); and manufacture of a large
capacity magazine (§ 32310; count four).
On May 10, 2017, the minor resolved this petition by admitting to a felony
violation of count one. The remaining counts were dismissed in the interests of justice.
The factual basis for his plea was that the minor was a passenger in a vehicle that was
pulled over, and a Glock 26 nine millimeter handgun that he had previously purchased
was on the floorboard in front of him. The minor was adjudged a ward of the court and
placed on probation subject to the recommended conditions. He was also committed to
juvenile hall for 13 days with credit for 13 days served, 46 days electronic monitoring
with credit for 46 days served, and finally 57 days home confinement with credit for 27
days served.
The Second Petition
On July 5, 2017, a subsequent petition was filed in Placer County mere weeks
after the minor had been released from home confinement. This petition alleged the
minor committed second degree robbery (§ 211; count one); conspiracy to commit theft
(§§ 182, subd. (a)(1), 484; count two); and attempted residential burglary in the first
degree (§§ 654, 459; count three). On July 17, 2017, the minor admitted committing
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robbery, it was stipulated the offense would not be a strike, the balance of the charges
were dismissed, and the matter was transferred to Sacramento County for disposition.
Sacramento County accepted the transfer and set the matter for disposition.
According to probation’s addendum report, the minor and two other individuals forced
employees of a drug store to open the narcotics safe and then fled with narcotics via a
waiting vehicle. The vehicle crashed during a pursuit, and they fled on foot. The minor
tried unsuccessfully to gain entrance to a residence, and ultimately, jumped a fence and
hid in a garbage can before he was apprehended.
On August 16, 2017, the minor was continued a ward of the court and ordered to
serve 90 days in juvenile hall with credit for 45 days. He would be subject to 30 days of
electronic monitoring upon his release and return to his parents.
The Minor Violates Probation and Absconds
On December 7, 2017, the People filed a petition alleging that the minor had
violated his probation by remaining away from home at night without the permission of
his father, remaining away from home for more than 48 hours without the permission of
his probation officer, and for failing to attend school/tardiness of more than 30 minutes
on December 4th, 5th and 6th of 2017 without a valid excuse. The minor’s father last
reported seeing him on December 4, 2017. In response, the court issued a warrant for the
minor’s arrest. However, the minor remained at large until arrested on that warrant in
Kansas City, Missouri on May 31, 2018. The minor was returned to Sacramento County
and his intake report noted he was a person of interest in a homicide and may have been
subject to a Ramey (People v. Ramey (1976) 16 Cal.3d 263) warrant.
Thereafter, on June 12, 2018, the minor admitted to being away from home
without his father’s permission in exchange for dismissal of the remaining counts and 15
days in juvenile hall with credit for 13 days served. His probation was revoked and
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reinstated, and he was ordered to serve 30 days on electronic monitoring following his
release from juvenile hall.
A New Petition and Motion to Transfer to Adult Court
On June 15, 2018, the People filed a petition and motion to transfer the minor to
adult court, alleging the minor had committed a robbery on April 26, 2017. The intake
report noted that DNA matching the minor had been recovered following a robbery of
narcotics from a drug store in Elk Grove.
The People amended this petition on June 25, 2018. The amended petition alleged
that, in addition to robbery occurring in April 2017 (§ 211; count one), on November 10,
2017, the minor carried a concealed weapon in a vehicle (§ 25400, subd. (a)(1); count
two); carried a loaded firearm on his person and in a vehicle (§ 25850, subd. (a); count
three); possessed a firearm capable of concealment (§ 29610; count four); and possessed
a firearm (§ 29820, subd. (b); count five).
Thereafter, the minor remained detained pending determination on the transfer
motion, including the minor’s arguments that he would no longer be subject to transfer
following the enactment of Senate Bill No. 1391. On January 28, 2019, the juvenile
court granted the People’s request to dismiss the motion to transfer. This same day, the
parties resolved the pending charges by adding a probation violation. The minor then
admitted to violating probation by illegally possessing a weapon; the robbery would be
dismissed. The court took under submission the parties’ agreement to dismiss the
remaining counts in the interests of justice. It was agreed that the court would decide the
appropriate disposition and probation was directed to prepare a placement
recommendation and disposition report.
The probation department’s March 8, 2019, disposition report recommended the
minor be placed in a level B facility out of state given the seriousness and sophistication
of his offenses, his deep entrenchment in gangs, and his history of running away and
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staying away for long periods of time. The placement committee considered, but
rejected, community-based treatment because of the minor’s need for a higher level of
structure, supervision, and treatment.
At the disposition hearing, minor’s counsel argued at length that the time for a
level B placement had passed and the minor should be returned home to live with his
mother given his lengthy stay in juvenile hall of approximately 280 days. The minor had
been previously motivated to complete a level B program when he was facing a transfer
to adult court, but that time had passed. The People disagreed stressing that a level B
placement was needed to address the minor’s significant rehabilitative needs and history,
including that the minor had been involved in two robberies, possessed firearms, was
involved in gangs, used marijuana, and, though he had been shot, he was uncooperative
with any investigation into that shooting.
Ultimately, the court counseled the minor, who was then 17, that this was his “last
best chance” to reform and proceed through life without a permanent criminal record.
With that in mind, the court ordered the minor to participate in level B treatment at
Woodward Academy in Iowa. Counts one through five of the June 25, 2018, petition
were dismissed as previously agreed, with the robbery count being subject to
consideration for dispositional purposes.
The Contested Violation of Probation Following the Minor’s Failed Placement
The People’s June 3, 2019, petition for violation of probation alleged that the
minor had been placed at Woodward Academy on April 9, 2019, and had violated his
probation by failing to abide by the reasonable directives of his probation officer and
program staff resulting in the minor’s termination from that placement on May 20, 2019.
The People also moved to have the minor committed to the Division.
At the contested violation hearing, placement probation officer Charlene Gehrt
testified to being the minor’s placement officer. She met with the minor prior to his
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placement, explaining he was to be placed at Woodward, and that at Woodward, he
would be expected to participate in that program’s “ ‘positive peer culture’ ” that asks
peers to hold each other accountable. On April 16, 2019, Officer Gehrt visited the minor
after approximately one week of placement. His adjustment to the program had been
“fair.” The minor privately complained that he did not want to participate in the positive
peer culture because he did not want to be a snitch. Officer Gehrt warned the minor that
positive peer culture was necessary for successful completion of the program. The minor
also complained about the number of rules, the difficulty in obtaining privileges, and that
the staff were confronting him over little things. He expressed a preference to return to
juvenile hall or an in-state program, but Gehrt advised he had been court ordered to
complete the Woodward program and encouraged him to work the program.
By Officer Gehrt’s second visit on May 21, 2019, Woodward had decided to
terminate the minor from the program. The minor’s participation had been poor. For
example, he still held the same status as at admission, indicating he was not working the
program. The program also reported the minor was a danger to the program, had incited
riotous situations, and had encouraged other participants to fight. When discussing his
potential termination, the minor asked about what would happen upon his return and what
would happen if he left the program without probation. He also expressed a preference to
just do his time in juvenile hall.
Following counsels’ argument, the juvenile court determined the minor had
violated his probation by failing to follow the reasonable directives of his probation
officer and the placement program, resulting in his termination.
The Contested Disposition and Commitment to the Division
Over the minor’s objection, the People presented Detective Kenny Shelton, who
testified as an expert in south Sacramento area black gangs. Detective Shelton had
monitored the minor’s gang activity since he was 13 or 14 years old. The minor’s social
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media posts from 2015 to as late as early 2018 showed him promoting the Stick Up Starz
and Guttah Gas (two related gangs) as well as associating with well-known gang
members. The posts displaying the minor with guns simultaneously flashing gang signs
showed he was an armed member of the gang who was willing to inflict violence on rival
gangs and the community. Detective Shelton documented the minor as a member of the
Stick Up Starz, but that probation listed him as a member of the Meadowview Blood
gang was not necessarily inconsistent because of hybrid associations currently used by
younger gang members.
The minor presented the testimony of his mother Sametha Woodard and Randal
Broadhurst of the Gang Awareness and Prevention (GAP) program in support of his
request to be released to Woodard’s home. Woodard testified that if the minor were
allowed to live with her, he would be in Citrus Heights and would attend San Juan High
School, although she had not met with the school.
Broadhurst testified as an expert in the area of gangs, gang awareness, and gang
prevention. He did not think the minor should go to the Division because it would set
back the progress Broadhurst had recently seen in him through the GAP program.
Instead, Broadhurst suggested the minor participate in construction training in the
afternoons and work with a mentor.
The minor, who was then 17.5 years old, also testified on his own behalf,
explaining the pictures of him offered by the People were from when he was 13 to 15
years old. He wanted “the fame” and to “fit it,” but the decisions he made were dumb.
When the minor ran away and stayed with his uncle in Kansas City, he helped him “flip”
houses and this inspired him to become a Realtor. His participation in the construction
program would help him achieve that goal because he could do his own work and flip
houses for a greater profit. The minor wanted to get out of Sacramento completely and
move back with his uncle, but would first live with his mother and complete high school
and the construction program. He had been participating in the GAP program and was
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learning how to control his anger and get a job. He had also completed some
programming in juvenile hall and promised that if released, he would not return to his
former ways or friends.
On cross examination, the minor denied being in a gang when he committed the
drug store robbery or that he had acted with gang members. Rather, he claimed that he
only became a gang member in early 2017. He also minimized much of his other
behavior, claiming the $1,495 in cash he was stopped with in February 2017 was from
mowing lawns and sweeping barber shops, even though he had a gun on him, which he
purchased for protection. He also denied being shot, stating he was only grazed and
admitted that he would not let the police take his picture at the hospital. He further
admitted owning a Lexus at age 15, that the police stopped him driving it on more than
one occasion, but denied that the gun recovered from the sunroof of that car was his. It
had been four months since the minor had thrown a gang sign, and he decided he no
longer was a member of the gang about two months before, after discussing it with his
mother and seeing how much his behavior upset her. The minor denied that he would use
marijuana if released, despite admitting daily usage when not locked up.
Following the argument of counsel, the juvenile court elected to send the minor to
the Division because the court determined the minor did not yet understand why he had
engaged in dangerous conduct and habitually used marijuana. The minor still needed to
learn how to live without falling back into his old behavior. The court expressed a hope
that the minor would continue his positive trajectory and would be able to participate in
fire camp, but noted that if he did not, the Division would have the requisite
programming to address his issues, including his gang affiliation. The minor’s maximum
confinement time was five years eight months, and he was awarded 542 days custody
credits. The minor timely appealed.
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DISCUSSION
I
The Contested Probation Violation
The minor argues the juvenile court erred in finding that the minor violated his
probation. He argues the court abused its discretion “because the probation officer was
not in favor of the minor’s termination from the program, and Woodward failed to follow
proper procedures in terminating him.” We disagree.
In reviewing the minor’s claim of error, we stress that in juvenile court, as in adult
proceedings, “[t]he facts alleged in the notice [of probation violation] shall be established
by a preponderance of the evidence at a hearing to change, modify, or set aside a previous
order.” (Welf. & Inst. Code, § 777, subd. (c); In re Eddie M. (2003) 31 Cal.4th 480,
501.) Probation violation hearings in juvenile court under Welfare and Institutions Code
section 777 parallel those in adult court under Penal Code section 1203.2 in all important
respects. (In re Eddie M., at pp. 501-502.) “Trial courts are granted great discretion in
deciding whether or not to revoke probation. [Citation.] ‘Absent abuse of that discretion,
an appellate court will not disturb the trial court’s findings.’ [Citation.]” (People v. Kelly
(2007) 154 Cal.App.4th 961, 965.) Mindful of the relaxed burden of proof in probation
violation hearings and the deferential standard of review, we conclude there was
sufficient evidence presented to support the juvenile court’s conclusion that the minor’s
behavior resulting in his termination from Woodward constituted a violation of his
probation.
Included among the minor’s conditions of probation was that he, “Obey all laws
and reasonable directives of group home staff, school officials and the Probation
Officer.” Officer Gehrt testified at the contested violation hearing to meeting with the
minor prior to placement and approximately one week into his placement, instructing him
to participate in the Woodward program. However, in contravention of that condition,
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the minor refused to meaningfully participate in the Woodward program. Even worse,
the minor engaged in dangerous behavior, for example, inciting riotous situations,
encouraging other participants to fight, and threatening staff. The minor’s
nonconformance is further demonstrated by his informing Officer Gehrt on more than
one occasion that he did not want to “snitch” on other participants at the program and
preferred to do his time in juvenile hall. Given his behavior, Woodward ultimately
terminated him from the program.
Accordingly, we find the trial court did not abuse its discretion in determining that the
minor violated his probation by failing to follow the reasonable directives of his
probation officer and group home staff resulting in his termination. (People v. Kelly,
supra, 154 Cal.App.4th 965.) The minor’s complaints that Officer Gehrt would have
worked more with him (but for his termination) and that the placement failed to hold a
family team meeting prior to terminating him without a discharge plan, do not invalidate
the substantial evidence supporting the court’s determination that the minor had violated
his probation. (See People v. Kurey (2001) 88 Cal.App.4th 840, 848-849 [all conflicting
inferences must be resolved in support of the decision if trial court’s findings are
supported by substantial evidence].) Nor is there any evidence in the record supporting
the minor’s arguments raised for the first time in his reply brief that he was terminated
from the program due to his unsubstantiated complaint of inappropriate touching by a
staff member. The minor did not complain of inappropriate touching at Gehrt’s April 16,
2019, visit or at the May 21, 2019 visit. Further, nothing in the record suggests this
complaint was ever determined to be founded. Rather, the minor’s father said it had not
been.
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II
The Expert Testimony
Prior to the contested disposition hearing and over the minor’s relevancy
objection, the People obtained the court’s preliminary approval to present testimony
regarding the minor’s prior gang entrenchment going back to 2017, which the court
determined would be admissible as part of the minor’s “entire prior history.” At the
outset of the contested disposition hearing, the minor renewed his objection to the
proposed gang expert testimony of Detective Kenny Shelton, arguing it was irrelevant
and inappropriate character evidence. The People represented Detective Shelton would
explain the minor’s gang membership as pertinent to his gang entrenchment and what
could happen if the minor was allowed to return home. The People argued this
information was relevant to whether it would be appropriate to send the minor to the
Division or release him home as requested. The court overruled this objection, as well as
another renewed objection, finding the information was admissible under section 706 of
the Welfare and Institutions Code.
The minor now argues Detective Shelton’s testimony was not needed and the trial
court erred under Evidence Code section 352 in allowing its admission. To the extent the
minor’s arguments rest on the application of Evidence Code section 352, the minor,
having failed to raise that argument in the juvenile court, is precluded from raising it on
appeal. (Evid. Code, § 353, subd. (a); see People v. Nelson (2012) 209 Cal.App.4th 698,
711 [citing People v. Doolin (2009) 45 Cal.4th 390, 434 for proposition that “failure to
raise a specific objection to the admission of evidence results in forfeiture of appellate
review”].) Further, we are not persuaded that the juvenile court erred in allowing
Detective Shelton’s testimony on relevancy grounds.
Welfare and Institutions Code section 706 mandates that the juvenile court at the
disposition hearing “shall receive in evidence the social study of the minor made by the
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probation officer and any other relevant and material evidence that may be offered. . . .”
While this necessarily includes the ability of the juvenile court to limit evidence under
Evidence Code section 352 (In re Romero C. (1995) 33 Cal.App.4th 1838, 1845), the
court is authorized to admit relevant evidence without strict adherence to the Evidence
Code. (See In re Vincent G. (2008) 162 Cal.App.4th 238, 243-244 [recognizing the rules
of evidence do not strictly govern disposition hearings and thus the court did not error in
admitting the minor’s hearsay], validity questioned on other grounds in People v.
Rhinehart (2018) 20 Cal.App.5th 1123, 1127 [regarding scienter requirements related to
probation conditions]; In re Michael V. (1986) 178 Cal.App.3d 159, 170 [“sections 706
and 725.5 of our juvenile court law expressly authorize the juvenile court to receive and
consider otherwise inadmissible evidence at the disposition hearing so long as it is
relevant and material to the disposition issue”].)
Here, the juvenile court was required to consider “the minor’s previous delinquent
history” (Welf. & Inst. Code, § 725.5), which necessarily included his prior gang
involvement. The probation report prepared in relation to his last probation violation
disclosed that both the minor and his father denied that the minor was a gang member,
but that information in previous social study and police reports identified the minor as a
member of the Meadowview Blood gang. This cursory information was greatly
expanded upon by Detective Shelton’s testimony as we shall explain.
Although it was possible that the minor was associated with the Meadowview
Bloods, Detective Shelton, who had been monitoring the minor since age 13 or 14,
identified the minor as a member of the Stick Up Starz. The minor associated with well-
known gang members of both the Stick Up Starz and Guttah Gas gangs. Further, his
social media posts documented the minor’s outward promotion of the Stick Up Starz and
Guttah Gas gangs, including his status as an armed gang member who was willing to
inflict violence on rival gangs and the community. This was consistent with the minor’s
multiple arrests and adjudications for gun possession and later admission at the
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disposition hearing to gang membership beginning in 2017, continuing until a few
months before the disposition hearing. It is undeniable the broader understanding of the
minor’s gang involvement was essential to the court’s determination of how best to
rehabilitate the minor while keeping the community safe. Thus, the minor has not
demonstrated the juvenile court erred in admitting this information.
III
The Minor’s Commitment to the Division
The minor argues the juvenile court erred in committing the minor to the Division
because “the minor had a solid plan to reside with his mother in a different neighborhood
where he would be employed, participate in counseling, and continue a relationship with
his trusted gang mentor.” This argument misapprehends the appropriate scope of
appellate review.
“ ‘The appellate court reviews a commitment decision for abuse of discretion,
indulging all reasonable inferences to support the juvenile court’s decision.’ [Citation.]
‘A [division] commitment is not an abuse of discretion where the evidence demonstrates
a probable benefit to the minor from the commitment and less restrictive alternatives
would be ineffective or inappropriate.’ [Citation.] ‘Although the [Division] is normally
a placement of last resort, there is no absolute rule that a [Division] commitment cannot
be ordered unless less restrictive placements have been attempted.’ [Citation.] [¶] We
examine the evidence in light of the purposes of the juvenile court law. (In re Michael R.
(1977) 73 Cal.App.3d 327, 333; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542
[purposes of the juvenile system include ‘the protection of the public as well as the
rehabilitation of the minor’].)” (In re A.R. (2018) 24 Cal.App.5th 1076, 1080-1081.)
Here, in considering the appropriateness of the minor’s request to return home, the
court weighed the skills he then had, the skills that could be gained through the GAP
program, work, and weekly counseling against the minor’s history of dangerousness.
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The court also noted that placement at either a level A or a level B program was not
available. In light of this, the court determined it was in the minor’s best interest to be
committed to the Division and that the minor’s proposal was insufficient to meet his
needs. In the court’s view, the minor did not understand why he engaged in wrongful
behavior, and thus, while he was motivated to change, the court did not think he
understood how to keep himself from engaging in prohibited conduct in the future.
Accordingly, the court determined there was no suitable alternative to a Division
commitment and that the minor would benefit from the programming there.
We concur that the record demonstrates the minor’s probable benefit from a
Division commitment. (In re A.R., supra, 24 Cal.App.5th at p. 1080.) From the moment
the minor was placed on probation, he continued to commit dangerous crimes during the
short period of time that he was out of custody. The minor’s first wardship petition for
various gun-related counts was brought in February 2017 when he was 14 years old.
While this case was pending, the minor committed the robbery in Elk Grove that was
later dismissed with consideration by the juvenile court. The minor resolved his initial
petition in May 2017, only to be brought back before the court for another robbery which
occurred in July 2017, mere weeks after the completion of his home confinement on the
initial petition.
Thereafter, the minor was continued as a ward and in juvenile hall and/or on home
confinement until October 2017. He was stopped with a concealed firearm in his car in
November 2017. Shortly thereafter at the beginning of December 2017, the minor ran
away and remained at large until he was arrested on an outstanding warrant at the end of
May 2018. On June 12, 2018, the minor admitted violating his probation by running
away. Shortly thereafter, the People filed a new law violation petition seeking his
transfer to adult court. This petition and motion remained pending for some time and
were ultimately dismissed after the California Legislature modified the law so that
juveniles whose offenses occurred when they were 15 years old were not subject to
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transfer. The minor ultimately resolved the matter by admitting violating his probation
for the November gun possession and the April 2017 robbery count was dismissed with
consideration.
Following this resolution, the juvenile court sent the minor to a level B placement
for treatment and counseled him that this was his “last best chance” to reform and
proceed through life without a permanent criminal record. However, the minor failed the
level B treatment program within five weeks of his admission. Reasons cited for this
failure included his incitement of riotous behavior in other participants, as well as
encouraging others to fight. The minor, for his part, expressed a preference to just do his
time in juvenile hall.
Further supporting that the minor would benefit from confined treatment at the
Division, as explained by Detective Shelton, the minor’s gang activity had been
monitored by Shelton since the minor was 13 or 14 years old. The minor’s social media
posts from 2015 to as late as early 2018 showed him promoting multiple gangs and
associating with well-known gang members. The minor held himself out as an armed
member of the gang willing to inflict violence on rival gangs and the community.
Detective Shelton documented the minor as a member of the Stick Up Starz, which was
consistent with the minor’s disposition hearing admission to gang membership beginning
in 2017 and continuing until a few months before the disposition hearing.
Against this formidable evidence, the juvenile court was not obligated to accept
the evidence presented by the minor suggesting the minor had recently changed and
would be safe to rehabilitate at home with his mother, and neither are we. (See
In re A.R., supra, 24 Cal.App.5th at p. 1080 [reviewing court must draw all reasonable
inferences in support of the juvenile court’s decision].) Accordingly, the minor has not
shown the juvenile court abused its discretion in committing him to the Division.
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DISPOSITION
The judgment is affirmed.
HULL, J.
We concur:
RAYE, P. J.
ROBIE, J.
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