People v. DeLeon CA1/5

Filed 6/14/22 P. v. DeLeon CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for pur-
poses of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,
v. A159925
ALEJANDRO ARTURO DELEON,
Defendant and Appellant.
(San Mateo County
Super. Ct. No. 16-NF-011144-A)

Alejandro Arturo DeLeon appeals after a jury convicted
him of second degree murder (Pen. Code, § 187, subd. (a))1 and
possessing a firearm as a felon (§ 29800, subd. (a)(1)), and it also
found “true” an enhancement allegation that DeLeon personally
and intentionally discharged a firearm causing death (§ 12022.53,
subd. (d)). The trial court sentenced him to an indeterminate
prison term of 42 years to life.

DeLeon asserts: (1) the prosecutor’s peremptory challenge
of an African-American prospective juror violated Batson v.
Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler
(1978) 22 Cal.3d 258 (Wheeler); (2) the trial court erroneously
admitted experimental evidence; and (3) the trial court abused its

1 Undesignated statutory references are to the Penal Code.
1
discretion by declining to strike the firearm enhancement. We
affirm.

BACKGROUND

A.

In September 2016, DeLeon shot and killed Daniel Corona
in the parking lot of a PetSmart store in San Mateo. The
prosecution’s theory was that DeLeon formed a deliberate and
premeditated intent to kill Corona because he was angry about
being disrespected by Corona, who was a Sureño gang member.
DeLeon admitted shooting Corona but testified that he shot
Corona in self-defense.

On the evening in question, Louis Mercado was driving a
silver Volvo. DeLeon was his passenger. They encountered
Corona, and his friends (E. L., Jose A., Daisy F., and Diana N.),
in a gold Lexus in the parking lot of a liquor store. DeLeon
greeted Corona and his friends by walking up to the Lexus and
saying, “ ‘thought I recognized one of y’all niggas.’ ” E. L. and
Corona exited the Lexus to confront DeLeon. Angry words were
exchanged but ultimately Corona and E. L. got back in the car
and left.

Corona had previously parked his truck in the PetSmart
parking lot, which was about one block away from the liquor
store. He and his friends drove there (in the Lexus), with beer
Corona had purchased.

Shortly after Corona and his friends left the liquor store
parking lot, Mercado drove extremely fast to DeLeon’s father’s
apartment, a few blocks away from the PetSmart. DeLeon
retrieved a handgun and placed it in the waistband of his pants.

Mercado then drove the Volvo and DeLeon to the PetSmart
parking lot. DeLeon exited the car, holding a gun. Corona and
his friends ran in different directions. Witnesses heard multiple

2
(three to four) shots fired and then saw Corona fall to the
pavement.

Jose A. testified that Corona had not been armed. Police
discovered no guns, ammunition, or gun paraphernalia when
they searched Corona’s truck and apartment. However,
immediately after the shooting and the departure of the Volvo,
Corona’s friends gathered around him. One witness observed a
female (matching Daisy F.’s description) approach a male (who
was crouched behind a car) and give him a bag.

B.

San Mateo Police Department officers pursued, and
attempted to pull over, the Volvo after DeLeon and Mercado fled
the scene. Instead of complying, Mercado drove erratically—at
speeds up to approximately 115 miles per hour—weaving through
traffic on several freeways, to evade the officers. DeLeon and
Mercado were ultimately detained in San Francisco.

During the pursuit, an officer observed someone throw a
black object under a bridge, from the passenger side of the Volvo.
When police searched the embankment below, they found a
loaded Smith & Wesson semiautomatic handgun. The gun’s
serial number matched that of a gun seen in a photograph found
on DeLeon’s phone.

Firearms experts opined that the gun found under the
bridge was the same one that fired most of the bullets and shell
casings found at the scene of the shooting.

The jury heard recordings of numerous phone calls DeLeon
made while in jail. The day after the shooting, DeLeon told his
girlfriend that she should not expect him to be released because
the police had a lot of evidence against him “for murder.” When
his girlfriend mentioned having known Corona, DeLeon protested
that “[Corona] was runnin’ his fuckin’ mouth” and “tried to push
up on me.”
3
 C.

DeLeon testified, in his own defense, that he shot Corona,
after Corona threatened him, out of panic and fear that Corona
was going to kill him.

DeLeon testified that Corona and E.L. challenged DeLeon
to fight after he innocently mistook their identities at the liquor
store. DeLeon was scared because Corona came very close to him
and said, “ ‘Next time you call my homie “nigga,” we gonna have a
problem.’ ” DeLeon also testified that he heard Corona say, “ ‘I’ll
kill that motherfucker.’ ”

DeLeon abruptly left the liquor store, without making his
intended purchase, and Mercado drove him to his father’s
apartment, in a hurry, because DeLeon had prearranged
marijuana sales, including one in the PetSmart parking lot, and
did not want to keep his customers waiting. DeLeon retrieved his
gun and some marijuana.

Mercado drove DeLeon to the PetSmart parking lot, where
DeLeon looked for an expected customer. Instead DeLeon saw
Corona standing in front of his truck. Corona pulled up his shirt
to reveal a chrome revolver, tucked into his waistband. Corona
said, “ ‘What’s up now, motherfucker?’ ”

When Corona pulled his gun out of his waistband and
began walking toward DeLeon, DeLeon pulled out his own gun
and fired it multiple times at Corona. DeLeon said he did so
because he was scared and that he was not thinking of killing
Corona or of anything else. DeLeon stopped shooting when
Corona, after turning and running away, fell to the ground.
DeLeon and Mercado did not stop the Volvo and discarded the
gun, after realizing police officers were pursuing them, because
DeLeon did not want to “get in trouble” for shooting Corona.

4
 On cross-examination, DeLeon acknowledged that he had
never mentioned in any of his post-arrest communications (with
his girlfriend, his father, or police) that Corona had been armed.

D.

The jury acquitted DeLeon of first degree murder but
convicted him of second degree murder and possessing a firearm
as a felon.2 The jury found the firearm enhancement allegation
true but acquitted DeLeon of another count—shooting from a
motor vehicle (§ 26100, subd. (c)). The trial court sentenced
DeLeon to an aggregate prison term of 42 years to life.

DISCUSSION

A.

DeLeon maintains the trial court improperly denied his
Batson/Wheeler motion. We disagree.

1.

Both the state and federal constitutions forbid a prosecutor
from striking even a single prospective juror on account of race.
(Foster v. Chatman (2016) 578 U.S. 488, 499; People v. Baker
(2021) 10 Cal.5th 1044, 1071 (Baker).)

A trial court must analyze a defendant’s Batson/Wheeler
motion using a three-prong test. First, the defendant must make
out a prima facie case with facts sufficient to support an inference
of discriminatory purpose. Second, if the defendant succeeds in
making such a showing, the burden shifts to the prosecutor to
provide a race-neutral reason for the strike. Third, assuming the
prosecutor does so, the court evaluates the prosecutor’s proffered
reasons and determines whether they are legitimate or

2 Before DeLeon testified, the parties stipulated that he
suffered a felony conviction, in 2014, for possession of marijuana
for sale (Health & Saf. Code, § 11359).
5
pretextual. (Baker, supra, 10 Cal.5th at p. 1071; accord, Johnson
v. California (2005) 545 U.S. 162, 168, 170-171.) The ultimate
burden of persuading the court—that purposeful discrimination
has occurred—rests with, and never shifts from, the opponent of
the strike. (People v. Lenix (2008) 44 Cal.4th 602, 612–613.)

2.

Here, jury selection took place over the course of four days.
There were only three African-American prospective jurors in the
venire—J.H., K.W., and Ashley N.—and all three were ultimately
excused. J.H. was excused by the court, via stipulation, for
hardship. The court excused K.W. for cause because K.W.
remembered details about this case that he read in the
newspaper. The People peremptorily challenged Ashley N., who
was the only other African-American prospective juror.

The court’s voir dire of Ashley N. indicated she was
unmarried, had no children, and volunteered at an insurance
agency. When asked by the court whether anyone in her family
had been “a victim” of a crime, Ashley indicated that her mother
had been victimized. When asked to explain, Ashley N. said a
police officer “falsely pulled [her mother] over” and gave her “a
false ticket, so we’re going to court over that right now.” Ashley
believed the incident would not influence her in this case, even if
numerous police officers testified, “because [any bad feelings
were] towards the police officer and not them.” She later added,
“It’s not like I have [any reason] to be . . . against the police.”

When the prosecutor followed up on that point, Ashley
stated that she had been a passenger while her mother was
driving, her mother had made a right turn, and her mother had
been stopped by a police officer and given a ticket. Ashley said
the police officer had been “nonverbal” when her mother pointed
out that there were no signs prohibiting a right turn. The ticket
indicated her mother had made an illegal U-turn. However,
Ashley N. believed she could be fair and impartial to both sides.
6
 When asked by the court about any concerns she may have
about serving as a juror on a case involving a gun, Ashley said, “I
don’t like handguns, but I’m not against them because I grew up
with one in the house.” Ashley later told the prosecutor that her
mother kept a gun for protection. Her mother had shown it to
Ashley, when she was a child, but instructed her not to touch it.

DeLeon’s defense attorney asked Ashley if she could assess
information critically. She replied, “Everything should be
questioned.” Ashley N. also raised her hand when the prosecutor
asked if anyone believed intent could not be proved in a criminal
trial.

When the prosecutor exercised a peremptory challenge to
remove Ashley N. from the jury, DeLeon’s counsel made a
Batson/Wheeler motion (outside the presence of the jury), arguing
that there was no evidence that Ashley could not be fair or
impartial. Defense counsel also emphasized that Ashley had
been the final African-American prospective juror in the venire.

The trial court denied DeLeon’s motion, concluding that he
had not presented a prima facie case of discrimination. The
prosecutor only stated his reasons for challenging Ashley after
the trial court found no prima facie case.

3.

This is a first prong case because the trial court concluded
that DeLeon failed to establish a prima facie case before the
prosecutor stated his reasons on the record. (See People v. Scott
(2015) 61 Cal.4th 363, 386-389, 391; People v. Bryant (2019) 40
Cal.App.5th 525, 536, 539 (Bryant).)

The moving party establishes a prima facie case “by
producing evidence sufficient to permit the trial judge to draw an
inference that discrimination has occurred.” (Johnson v.
California, supra, 545 U.S. at p. 170.) This does not mean that
there is any requirement to show a systematic exclusion of
7
multiple jurors on the basis of their membership in a protected
class. (People v. Battle (2021) 11 Cal.5th 749, 773 (Battle).)
Instead, the court considers all the relevant circumstances to
determine whether the record supports an inference the
prosecutor excused one or more prospective jurors because of
race. (People v. Rhoades (2019) 8 Cal.5th 393, 429 (Rhoades).)
Ordinarily we review the trial court’s first prong decision
deferentially, for substantial evidence. (Battle, supra, at p. 772.)

Certain types of evidence are especially relevant, including
whether the prosecutor has struck most or all of the members of
an identified group from the venire; whether the prosecutor has
used a disproportionate number of their strikes against members
of the same group; whether the prosecutor has engaged
prospective jurors from that group in only superficial voir dire;
whether the defendant is a member of the identified group; and
whether the victim is a member of the group to which a majority
of remaining jurors belong. (Rhoades, supra, 8 Cal.5th at p. 429.)
We may also consider nondiscriminatory reasons for the
prosecutor’s challenge that “ ‘ “necessarily dispel any inference of
bias,” ’ ” if those reasons are clearly established in the record.
(Ibid.)

4.

Here, even if we assume (without deciding) that the trial
court’s decision is not entitled to deference and should be
reviewed independently, as De Leon argues, we see no inference
of discrimination.

DeLeon cannot show that the prosecutor peremptorily
challenged most or all of the African-American jurors from the
venire because the prosecutor only struck one. (Rhoades, supra,
8 Cal.5th at pp. 429-430.) In these circumstances, it is very
difficult, although not impossible, to make a prima facie case.
(Battle, supra, 11 Cal.5th at p. 776.)

8
 Nonetheless, DeLeon suggests close scrutiny is warranted
because the prosecutor used a peremptory challenge against
Ashley N. to excuse the only remaining African-American
prospective juror he could have excused. (Bryant, supra, 40
Cal.App.5th at p. 537.) He suggests that the court’s excusal of
another African-American prospective juror (K.W.) for cause
should be considered suspicious. We disagree.

It is true that the prosecutor challenged K.W. for cause.
However, challenges for cause are distinct from peremptory
strikes. (See Rhoades, supra, 8 Cal.5th at p. 435.) “Specious” for-
cause challenges might support an inference of bias in some
situations. (Battle, supra, 11 Cal.5th at pp. 782-783.) But, here,
there is no indication that the for-cause challenge to K.W. was
specious. K.W. indicated he remembered specific details about
the case, including the chase, that he read in the newspaper. If
the prosecutor believed K.W. would not be able to decide the case
impartially solely on the evidence, this was a valid basis to
challenge a juror for cause. (People v. Farley (2009) 46 Cal.4th
1053, 1093-1095.)

Ultimately we need not decide whether a peremptory
challenge exercised against only one (but the final) prospective
African-American juror raises any particular suspicion because
there are no further circumstances suggesting that the prosecutor
struck Ashley N. for racial bias. (See People v. Parker (2017) 2
Cal.5th 1184, 1212.)

The prosecutor did not use a disproportionate number of
his peremptory challenges against African-Americans. The
prosecutor’s peremptory challenge to Ashley N. was his seventh
and it was the only one exercised against an African-American
prospective juror. Our review of the record shows no indication
that the prosecutor’s voir dire of Ashley was striking in any way.
(See Battle, supra, 11 Cal.5th at p. 783; Bryant, supra, 40
Cal.App.5th at p. 539.)

9
 There are no heightened concerns raised by the defendant’s
or victim’s race because neither were African-American. The
defendant need not be a member of the group in question to raise
a Batson/Wheeler objection. (Baker, supra, 10 Cal.5th at p. 1080;
Powers v. Ohio (1991) 499 U.S. 400, 402.) However, when the
defendant is not a member of the group purportedly subject to
discrimination, this circumstance weighs against a prima facie
case. (See Rhoades, supra, 8 Cal.5th at pp. 429-430.)

Finally, any inference of bias is further weakened because
the record reveals Ashley N. had obvious race-neutral
characteristics that a reasonable prosecutor would seek to avoid.
(See Rhoades, supra, 8 Cal.5th at p. 431.) Ashley’s negative
experience with law enforcement is clearly established by the
record. Ashley also expressed her comfort and familiarity with
guns. Further, she was skeptical about the prosecutor’s ability to
prove intent—a key issue in this murder case—beyond a
reasonable doubt. These readily-apparent, nondiscriminatory
reasons dispel any inference of bias. (Rhoades, supra, at pp. 432-
434; People v. Reed (2018) 4 Cal.5th 989, 1001.)

We conclude, after an independent review of all the
circumstances, that DeLeon failed to establish a prima facie case
of racial discrimination.

5.

In 2020, the Legislature passed Assembly Bill Number
3070, which enacted Code of Civil Procedure section 231.7.
(Stats. 2020, ch. 318, §§ 1-3.) The statute codifies the
Batson/Wheeler principle—that peremptory challenges may not
be made on the basis of a prospective juror’s race. (Code Civ.
Proc, § 231.7, subd. (a).) Among other changes, the new statute
makes certain reasons for exercising a peremptory challenge—
including having a negative experience with law enforcement—
presumptively invalid. (Id., § 231.7, subds. (e)-(g), (j).) However,
the new law only applies to trials in which jury selection begins
10
on or after January 1, 2022. (Id., § 231.7, subd. (i).) Because
DeLeon’s jury selection occurred in 2019, this statute does not
lessen his burden to establish a prima facie case.

B.

DeLeon also insists the trial court erred, and violated his
due process and fair trial rights, by admitting experimental
evidence that cast doubt on DeLeon’s testimony that Corona was
armed at the time of the shooting. We conclude any error was
harmless.

1.

The trial court has wide discretion, under Evidence Code
section 352, to admit or reject experimental evidence. (People v.
Peterson (2020) 10 Cal.5th 409, 460.) Before experimental
evidence is admitted, its proponent bears the burden to establish
that the experiment is relevant, that it was conducted under
conditions substantially similar to those of the actual occurrence,
and that it will not mislead or confuse the jury or take undue
time. (Ibid.)

2.

Corona was wearing a t-shirt and athletic shorts, with an
elastic/drawstring waistband, when he was shot. He weighed 305
pounds.

After DeLeon testified that Corona had been holding a gun
in his waistband shortly before the shooting, Nick Ryan—who
was the investigating detective—testified, in rebuttal, that he
reviewed Corona’s Facebook account, where he discovered a
photograph of a chrome-colored 686 Smith & Wesson revolver.

Ryan also testified that he conducted an experiment to
assess whether one could physically hold such a revolver in the
waistband of athletic shorts. Specifically, Ryan—who weighed
about 190 pounds and was familiar with Smith & Wesson

11
revolvers—testified that he put on a t-shirt and basketball shorts
and tucked his own 586 Smith and Wesson revolver into the
waistband of his shorts. He explained that the 586 model only
differed from the 686 model in that they were different colors and
Ryan’s gun was smaller—both in weight and barrel length—than
the 686.

After this foundation was laid, the trial court admitted,
over DeLeon’s “foundation” objection, a video of Officer Ryan’s
experiment. The video shows Ryan wearing basketball shorts
and stating that he had tied the shorts as tight as he could.
Immediately after Ryan places his revolver into the waistband of
his shorts and removes his hand, the gun falls out of the
waistband and down through his shorts’ legs.

3.

DeLeon contends the People did not demonstrate that
Ryan’s experimental conditions sufficiently resembled actual
conditions. We need not resolve this question. Even if we
assume the trial court abused its discretion (see People v.
Peterson, supra, 10 Cal.5th at p. 460 [standard of review]), any
error was harmless.

We consider the question of prejudice under the People v.
Watson (1956) 46 Cal.2d 818, 836 standard because DeLeon fails
to support his argument that the purported error violated his
constitutional rights. (See People v. Partida (2005) 37 Cal.4th
428, 439; People v. Bonin (1989) 47 Cal.3d 808, 847-848.)

It is not reasonably probable the jury would have reached a
more favorable verdict without the assumed evidentiary error.
(People v. Bonin, supra, 47 Cal.3d at p. 848.) The prosecution
presented other compelling evidence of DeLeon’s guilt. And
DeLeon’s self-serving testimony that Corona had a gun was weak
even without the experimental evidence. No other witness
testified that Corona was armed at the time of the shooting, and

12
the police did not find a gun or any ammunition at the scene, in
Corona’s truck, or at Corona’s apartment.

Notably, DeLeon never once mentioned being threatened
with a gun in numerous calls to friends and family from jail,
despite extensive discussion in these calls of the case, the
evidence, and possible defenses. DeLeon explained the shooting
to his girlfriend, for example, by saying that “[Corona] was
runnin’ his fuckin’ mouth” and “tried to push up on me.” In
another call, DeLeon and his girlfriend discussed a possible alibi
defense—that he was with her at the time of the murder. As his
girlfriend put it, “you have to worry about your story, so, you
need an alibi.” DeLeon responded, “Yeah. For sure.” In yet
another call, DeLeon’s girlfriend suggested that DeLeon acted in
self-defense because Corona had a bat.

On this record, any error was harmless.

C.
Finally, DeLeon challenges the trial court’s decision to
decline to strike the firearm use enhancement in furtherance of
justice (§ 12022.53, subd. (h)). He shows no abuse of discretion.
(See People v. Pearson (2019) 38 Cal.App.5th 112, 116 (Pearson)
[standard of review].)

1.

Before 2018, trial courts were required to impose additional
punishment for firearm enhancements found true. (§ 12022.53,
subds. (d), (h), as enacted by Stats. 2010, ch. 711, § 5.) But trial
courts now (and at the time DeLeon was sentenced) have
discretion to strike or dismiss them “in the interest of justice.”
(§ 12022.53, subd. (h), as amended by Stats. 2017, ch. 682, § 2,
eff. Jan. 1, 2018; People v. Flores (2021) 63 Cal.App.5th 368, 376.)

While DeLeon’s appeal was pending, our Supreme Court
resolved a split of authority about whether a court may also

13
reduce the punishment imposed for the particular firearm
enhancement at issue here—which provides for a term of 25
years to life under section 12022.53, subdivision (d)—by imposing
a lesser uncharged firearm enhancement under subdivisions (b)
or (c). (People v. Tirado (2022) 12 Cal.5th 688, 696-697, 700
(Tirado).) Our Supreme Court concluded: “When an accusatory
pleading alleges and the jury finds true the facts supporting a
section 12022.53(d) enhancement, and the court determines that
the section 12022.53(d) enhancement should be struck or
dismissed under section 12022.53(h), the court may, under
section 12022.53(j), impose an enhancement under section
12022.53(b) or (c).” (Tirado, supra, at p. 700.)3

2.

The jury found true an enhancement allegation that
DeLeon personally and intentionally discharged a firearm
causing death (§ 12022.53, subd. (d)). However, at sentencing,
DeLeon’s counsel asked the trial court to exercise its discretion to
strike the firearm enhancement, in furtherance of justice.
Despite not having been specifically charged with such lesser
enhancements, DeLeon’s counsel asked the trial court, in the
alternative, to impose a lesser enhancement under subdivisions

3 A conflict existed at the time of DeLeon’s sentencing.
(Tirado, supra, 12 Cal.5th at pp. 696-697 [discussing conflict
between People v. Morrison (2019) 34 Cal.App.5th 217, 222-223
[court has discretion to impose uncharged lesser enhancement]
and People v. Tirado (2019) 38 Cal.App.5th 637, 643 [uncharged
lesser enhancement cannot be imposed], revd. by Tirado, supra,
12 Cal.5th at p. 700].) In his opening brief on appeal, DeLeon
appears to concede that the trial court was aware of its discretion
to impose an uncharged lesser enhancement under section
12022.53, subdivisions (b) or (c). It is not until his reply brief
that he asks us to remand the matter for the trial court to
consider anew whether to impose such a lesser enhancement.
Accordingly, he forfeited the argument. (See People v. Newton
(2007) 155 Cal.App.4th 1000, 1005.)
14
(b) or (c) of the statute. In support of his requests, DeLeon
pointed out his age (22 years old) at the time the crimes were
committed, his history of childhood trauma, and the fact that he
had not previously been convicted of a violent crime.

The trial court denied DeLeon’s request, stating: “As to the
enhancement under 12022.53(d), I think the reason we have that
provision is the legislative desire to get guns off the street and
this is one way to do it.” Accordingly, in addition to imposing a
term of 15 years to life for second degree murder, the court
imposed a consecutive term of 25 years to life for the aggravated
firearm enhancement (§ 12022.53, subd. (d)).

3.

DeLeon maintains the trial court abused its discretion
because it relied on an impermissible factor. He is wrong.

In deciding whether to strike a firearm enhancement in the
interest of justice, the trial court must consider the same factors
it is required to consider when sentencing in the first instance.
(Pearson, supra, 38 Cal.App.5th at pp. 116-117.) Those factors
include general sentencing objectives (including protecting
society and deterrence of criminal conduct), whether the victim
was particularly vulnerable, whether the defendant was armed or
used a weapon in committing the crime, and whether the crime
involved great violence, threat of great bodily harm, or a high
degree of cruelty, viciousness, or callousness. (Id. at p. 117; Cal.
Rules of Court, rules 4.410 & 4.421.)

DeLeon’s argument appears to be grounded only in the fact
that the trial court did not explicitly mention any of the above
factors on the record when it made its ruling. But we presume
the trial court considered the correct factors unless the record
affirmatively shows otherwise. (Pearson, supra, 38 Cal.App.5th
at p. 117.)

15
 Here, nothing in the record indicates the trial court failed
to follow the law. It heard relevant argument from the
prosecutor and defense counsel. And, in explaining its decision,
the trial court merely indicated that imposition of the 25 years to
life enhancement furthered the deterrence and protective
purposes of the statute. The trial court was not wrong about the
legislative intent. (See Stats. 1997, ch. 503, § 1 [“Legislature
finds and declares that substantially longer prison sentences
must be imposed on felons who use firearms in the commission of
their crimes, in order to protect our citizens and to deter violent
crime”].)

DeLeon fails to show that the trial court abused its
discretion. (See Tirado, supra, 12 Cal.5th at p. 701.)

DISPOSITION

The judgment is affirmed.

16
 ______________________
BURNS, J.

We concur:

____________________________
SIMONS, ACTING P.J.

____________________________
WISEMAN, J.*

A159925

* Retired Associate Justice of the Court of Appeal, Fifth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

17