IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)
May 18, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JULIAN OMAR GUERRA, DEFENDANT AND APPELLANT.
(Super. Ct. No. 62-78964B)
The opinion of the court was delivered by: Butz , J.
P. v. Guerra 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Julian Omar Guerra was convicted by a jury of four counts of importing or transporting an assault weapon in violation of Penal Code section 12280, subdivision (a)(1)*fn1 (counts two through five), conspiracy to import or transport an assault weapon (§§ 182, subd. (a)(1), 12280, subd. (a)(1)--count one), importing a large-capacity magazine (§ 12020, subd. (a)(2)--count six) and carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)--count seven). The trial court sentenced him to seven years four months in state prison, but suspended execution of sentence and placed him on felony probation for five years.
Defendant appeals claiming insufficiency of the evidence and instructional error. He also seeks additional presentence custody credit. We shall grant him the additional credit, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 2008, special agents for the California Department of Justice (DOJ) Bureau of Firearms were present at a gun show at the Grand Sierra Casino in Reno, Nevada. The agents were watching for people who might be illegally transporting assault weapons into California. Defendant and Tony Eugene Goodspeed*fn2 were observed entering the gun show together. Goodspeed carried two long rifles into the show. Subsequently, both men were seen inside the casino carrying AK-47-style rifles (which are illegal in California) slung over their shoulders. About two hours later, Goodspeed manipulated*fn3 what appeared to be an AR-15- or AR-10-style assault rifle, while defendant stood nearby.
Goodspeed left the gun show with a man later identified as Kevin Wise of Rancho Cordova. The men walked over to a green Subaru registered to Wise and bearing California license plates. They approached a third man, later identified as Nevada resident, William Cunningham. Cunningham opened the trunk of his BMW (with Nevada license plates) and took out two military-style assault rifles that appeared to be of a type illegal in California. After handling the rifles, Goodspeed and Wise put one of them--an AR-type rifle--in the rear of the Subaru and returned to the gun show. Inside the show, Goodspeed and defendant spoke to an older man who had a nylon bag that appeared to hold a handgun. Defendant took out a thick stack of cash and handed some of it to Goodspeed, who gave it to the older man in exchange for the bag.
Following this transaction, defendant, Goodspeed and Wise were seen at the green Subaru in the parking lot. Defendant got into a gold-colored Suburban, bearing California license plates, and drove it next to the Subaru. After engaging in conversation with the other two men, defendant took several plastic bags and an AK-47-style rifle out of the Subaru and put them in the rear of the Suburban. The Suburban was registered to defendant's mother in Alameda at the same address defendant gave for himself at the time he was booked.
As defendant and Goodspeed drove away from the gun show in the Suburban, they were tracked by the DOJ agents. The suspects first stopped at a gas station for fuel, then Wal-Mart, and then dined at a local restaurant. Afterwards, they drove out to a desolate area near Pyramid Lake. Due to darkness and the rural area, the agents were unable to see what the men were doing, but they heard several rounds of rapid gunfire coming from the vicinity.
Defendant and Goodspeed then returned to Reno where they circumnavigated the downtown area, making a series of U-turns. The Suburban then headed westbound on Interstate 80 across the California border into Placer County, where California Highway Patrol officers initiated a felony stop.
A search of defendant's person yielded a Glock .40-caliber semiautomatic handgun with a fully loaded magazine; neither the Glock nor any other firearm in the vehicle was registered to defendant. Officers searching the Suburban found four assault-style weapons: two AK-47-type assault rifles similar to the ones that defendant and Goodspeed were carrying at the gun show; a Colt AR-15 assault rifle; and an Eagle Arms AR-10 assault rifle. The two men had no permits for the weapons and none was registered in California. In addition, officers discovered several high-caliber magazines suitable for the assault weapons that were in the vehicle.
After being handcuffed and asked to identify himself, defendant pointed to a wallet that Goodspeed had thrown on the ground. The wallet contained a badge with the title "Ambassador-Diplomat." It identified Goodspeed as a "Diplomatic Agent" and stated, "'Do not delay, detain, or arrest for any offense, [citations].'" Defendant was later found in possession of the same identification badge. It was later determined that the diplomatic badges were ordered from an Internet company. Defendant was also carrying a "bundle" of cash totaling $4,500.
Prosecution expert Blake Graham testified that assault weapons that are illegal in California are classified either by certain makes or models, or by generic characteristics. Those of the latter type are "Category 3" weapons. To qualify as a Category 3 assault weapon, it must have four characteristics: (1) it must be semiautomatic; (2) it must discharge "centerfire" ammunition; (3) it must have a detachable magazine; and (4) it must have a pistol grip. All four assault weapons that defendant was charged with transporting had these characteristics.*fn4 On cross-examination, Graham stated that it would certainly be helpful to handle and examine a weapon to determine whether it had the four characteristics that made them illegal. Whether a gun is semiautomatic is the biggest factor in weapons purchases, but Graham could tell within a minute of a visible inspection whether a gun was semiautomatic.
The defense presented no evidence.
I. Sufficiency of the Evidence to Support the Conspiracy Conviction
Defendant first contends there was no substantial evidence to support his conviction for conspiracy to import or transport assault weapons. He points out that there was no evidence that he handled the firearms in such a manner as to make him aware of their characteristics as assault weapons, that he had ever bought assault weapons, or that his residence was used to harbor such weapons.
The problem with defendant's argument is that it focuses on the absence of direct evidence proving a conspiracy, paying no attention to the circumstantial evidence that convincingly supports the jury's verdict.
"We examine the record to determine 'whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] Further, 'the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] This standard applies whether direct or circumstantial evidence is involved." (People v. Catlin (2001) 26 Cal.4th 81, 139, italics added.)
In accordance with CALCRIM No. 2560, the trial court instructed the jury that, in order to prove defendant guilty of transporting an illegal assault weapon into the State of California, the prosecution must show: "1. The defendant transported . . . into the State of California, an assault weapon; AND [¶] 2. The defendant knew that he transported or imported it; AND [¶] 3. The defendant knew or reasonably should have known that it had characteristics that made it an assault weapon."
"Conspiracy" is defined as an unlawful agreement between two or more people to commit a crime and an overt act in furtherance of the agreement. (§ 182, subd. (a)(1); People v. Urziceanu (2005) 132 Cal.App.4th 747, 776 (Urziceanu).) A charge of conspiracy requires proof the defendant and another person had the specific intent to agree to commit an offense and the specific intent to commit the elements of that offense. (§ 182, subd. (a)(1); People v. Morante (1999) 20 Cal.4th 403, 416.)
A criminal conspiracy may be established by circumstantial evidence. (People v. Herrera (2000) 83 Cal.App.4th 46, 64; People v. Prevost (1998) 60 Cal.App.4th 1382, 1399.) It is "not necessary to demonstrate that the parties met and actually agreed to undertake the unlawful act or that they had previously arranged a detailed plan. The evidence is sufficient if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. Therefore, conspiracy may be proved through circumstantial evidence inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy." (Prevost, at p. 1399; People v. Rodrigues (1994) 8 Cal.4th 1060, 1135; Herrera, supra, 83 Cal.App.4th at p. 64; see also People v. Vu (2006) 143 Cal.App.4th 1009, 1025.)
To be guilty of possessing a prohibited assault weapon, all that is necessary is that the defendant have ample opportunity to examine the weapon and discover its illegal characteristics. (In re Jorge M. (2000) 23 Cal.4th 866, 869-870 (Jorge M.).)
There was ample circumstantial evidence supporting a reasonable inference that defendant and Goodspeed conspired to transport illegal weapons into California. The two men entered the gun show together and were seen inside the casino carrying assault rifles over their shoulders. Defendant handed a stack of cash to Goodspeed in order to complete one of the gun transactions. He was standing in close proximity when Goodspeed manipulated and inspected one of the assault weapons. Defendant and Goodspeed worked in unison to take an assault rifle out of the Subaru belonging to Wise and put it in their own vehicle, which was registered to defendant's mother in California. After the two men dined in a Reno restaurant, they went to a remote location where, inferably, they test-fired their newly acquired weapons. Finally, when defendant was arrested, he had a phony diplomat identification and an unregistered, fully loaded, semiautomatic firearm in his possession.
Based on the foregoing, the jury could conclude that defendant and Goodspeed expressly or tacitly agreed to bring illegal firearms into California. Defendant's challenge to the sufficiency of the evidence on the conspiracy count must be rejected.
II. Failure to Instruct on Mistake of Law
The trial judge rejected defense counsel's proposed mistake of fact instruction, ruling that any mistake defendant may have made was one of law, not fact. On that point, the court instructed the jury, "It is not a defense to the crimes charged in this case that the defendant did not know he was breaking the law or that he believed his acts were lawful." (CALCRIM No. 3407.)
The trial court's giving of the quoted instruction was correct. "While a mistake of fact usually is a defense, a mistake of law usually is not. It is commonly said that ignorance of the law is no excuse. [Citation.] '[I]n the absence of specific language to the contrary, ignorance of a law is not a defense to a charge of its violation.' [Citation.] 'If the act itself is punishable when knowingly done, it is immaterial that the defendant thought it was lawful.'" (People v. Meneses (2008) 165 Cal.App.4th 1648, 1661-1662 (Meneses).)
While conceding that mistake of law was not a defense to the five substantive counts of which he was convicted, defendant nevertheless claims the trial court erred in failing, sua sponte, to give a mistake of law instruction as to the conspiracy count (count one). The argument fails.
Defendant is correct that, in some circumstances, mistake of law may be a defense to a conspiracy charge. "Mistake of law is a defense where the mistake negates the specific intent required for the crime." (People v. Flora (1991) 228 Cal.App.3d 662, 669 (Flora).) Because conspiracy requires a specific intent to violate the law, a defendant's belief that his acts were lawful may provide a defense where the defendant is charged with conspiracy. (Urziceanu, supra, 132 Cal.App.4th at p. 779.)
"However, a mistake of law instruction is only appropriate where the evidence supports a reasonable inference that the claimed mistake was held in good faith." (Flora, supra, 228 Cal.App.3d at p. 669.) Defendant did not testify and introduced no evidence. The prosecution's evidence did not include any statements by defendant concerning his state of mind at the time he transported the illegal weapons into California.
Defendant's reliance on Urziceanu and Meneses does not help him since, in each of those cases, the defendant presented extensive evidence of his good faith belief that his acts did not violate the law. (Meneses, supra, 165 Cal.App.4th at pp. 1653-1654; Urziceanu, supra, 132 Cal.App.4th at pp. 763-765, 792.)*fn5 Here, defendant introduced no evidence that he believed he was acting lawfully when he brought assault weapons into California. The trial court obviously had no duty to instruct on a defense for which there was no evidentiary support.
III. Sufficiency of the Evidence to Support the Weapons Convictions
Defendant next challenges the sufficiency of the evidence to support the four substantive charges of importing illegal assault weapons (counts two through five). He observes that the prosecutor proceeded upon four different theories of liability--direct perpetrator, aiding and abetting, conspiracy, and natural and probable consequences. He asserts there was insufficient evidence to support his guilt on any of the four theories. Of course, if there is substantial evidence supporting at least one theory, the verdict must be upheld. (People v. Silva (2001) 25 Cal.4th 345, 370 ["If a count is submitted to a jury on alternative theories, and the evidence is insufficient as to one theory, we assume that the jury rested its verdict on the theory adequately supported by the evidence . . . ."].)*fn6
The evidence we have recited in part I, ante, amply supports a jury finding that defendant and Goodspeed cooperated and worked together to knowingly transport illegal assault weapons from the Reno gun show into California. Thus, the record contains abundant evidence of defendant's guilt on either a conspiracy or an aiding and abetting theory.
Despite this overwhelming evidence, defendant nevertheless insists that "[t]here is no direct evidence that [he] knew that the four weapons purchased by Goodspeed possessed characteristics which brought them within the statutory definition of an assault weapon."
In Jorge M. the California Supreme Court concluded that section 12280, subdivision (b) was not intended to define a strict liability offense. (Jorge M., supra, 23 Cal.4th at pp. 869, 887.) However, given the gravity of the public safety threat addressed by the Roberti-Roos Assault Weapons Control Act of 1989 (ACWA) (§§ 12275-12290), the need for effective law enforcement and the potential difficulty of routinely proving the defendant's actual knowledge, Jorge M. held that the ACWA does not require actual knowledge of the assault weapon's illegal characteristics. Instead, guilt of a person charged with possessing the weapon is established by proof that he knew or reasonably should have known that the firearm in question possessed the characteristics that make it an illegal assault weapon. (Jorge M., at pp. 869-870, 887.) Moreover, because the law imposes a duty to learn about and comply with the law, "a person who has had substantial and unhindered possession of a semiautomatic firearm reasonably would be expected to know whether or not it is of a make or model listed in section 12276 or has the clearly discernable features described in section 12276.1." (Jorge M., at p. 888.)
Thus, the only scienter requirement essential to proof of possession or transport of illegal weapons under the ACWA is that the defendant knew or reasonably should have known the characteristics of the weapons that bring them within the definition of assault weapons set forth in the ACWA. Evidence that tends to satisfy this scienter requirement includes the fact that the defendant had a reasonable opportunity to inspect the weapons and discover their illegal characteristics. (Jorge M., supra, 23 Cal.4th at pp. 869-870.) The evidence here undoubtedly satisfied that requirement. Defendant was seen in Goodspeed's company several times during the gun show; he participated with him in the purchase of the weapons; and he helped him load them into defendant's vehicle. DOJ agents also observed defendant in close proximity when Goodspeed inspected and manipulated assault firearms. Finally, there was circumstantial evidence the two men tried out the weapons at a remote location before bringing them into California. We conclude the record contains abundant evidence from which a jury could reasonably conclude that defendant had both "unhindered possession" and an ample opportunity to discover the illegal nature of the weapons he helped transport.
IV. Instruction on the Natural and Probable Consequences Theory of Guilt
During deliberations, the jury sent the trial judge a note asking the following question: "For a defendant to be guilty of unlawful transport or import of Assault Weapons via instruction 401 Aiding [and] Abetting, must the defendant have specific knowledge of a specific weapon being present/involved OR is it sufficient that the defendant only knew that the perpetrator intend[s] to commit a transport violation per sec[tion] 2560."*fn7 In response, the court instructed the jury on the natural and probable consequences theory of aiding and abetting liability. Defendant faults the trial court for giving this supplemental instruction.*fn8
Under the natural and probable consequences doctrine, "a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a 'natural and probable consequence' of the crime originally aided and abetted." (People v. Prettyman (1996) 14 Cal.4th 248, 254.) Thus, to convict a defendant of a nontarget crime as an aider and abettor, the jury must find that the defendant assisted or encouraged the commission of a target crime, the defendant's confederate committed an offense other than the target crime, and the nontarget offense committed by the confederate was a natural and probable consequence of the target crime that the defendant assisted or encouraged. (Ibid.) The jury need not unanimously agree on the specific target crime that the defendant aided and abetted, but, at trial "each juror must be convinced, beyond a reasonable doubt, that the defendant aided and abetted the commission of a criminal act, and that the offense actually committed was a natural and probable consequence of that act." (Id. at p. 268.) To assist the jury in properly applying the doctrine, the trial court's instructions to the jury must identify and describe the specific target crime or crimes that the defendant allegedly aided and abetted. (Id. at pp. 266-267.)
The trial judge correctly identified the problem: Since defendant was charged in counts two through five of transporting four specific illegal weapons, the jury wanted to know whether it was necessary that he have knowledge of the make and model of each one to be found guilty on each of the charged counts.*fn9 The trial judge also properly perceived that the natural and probable consequences doctrine would be helpful in answering that question: By application of this rule, if the jury found that defendant aided and abetted the transport of at least one prohibited weapon (the target crime), he could be found guilty of the remaining transport counts (the nontarget crimes) if commission of those crimes was a natural and probable consequence of the target crime.
We disagree with defendant's claim that the natural and probable consequences doctrine did not apply because there was no "target" crime. The target crime was any single one of the four assault weapon counts charged in the information. We also reject his suggestion that, in order for the doctrine to apply, the nontarget crime must be more "serious" than the target crime. Nowhere in its discussion in Prettyman does the California Supreme Court state or imply that the nontarget crime must carry a more severe punishment than the target crime.
However, we do find that the instruction, as given, was inadequate because it did not identify a specific target crime. The jury was simply told that if defendant intended to aid and abet the generic crime of "importation or transportation of an assault weapon," it could find him guilty of counts two through five based on the natural and probable consequences theory of accomplice liability.
We therefore turn to the question of prejudice. When instructions are claimed to be conflicting or ambiguous, "we inquire whether the jury was 'reasonably likely' to have construed them in a manner that violates the defendant's rights." (People v. Rogers (2006) 39 Cal.4th 826, 873.) "'[W]e do not view the instruction in artificial isolation but rather in the context of the overall charge. [Citation.] For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.'" (People v. Wallace (2008) 44 Cal.4th 1032, 1075.) The arguments of counsel must also be considered in "assessing the probable impact of the instruction on the jury." (People v. Young (2005) 34 Cal.4th 1149, 1202.) Finally, we must assume the jurors are intelligent persons, capable of understanding and correlating all the instructions. (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Here, while the subject instruction was not as precisely phrased as it should have been, it did convey the basic concept applicable to the case: If defendant knowingly aided and abetted Goodspeed in committing at least one (target) weapons offense, he could be found guilty of committing the remaining crimes if, objectively viewed, their commission was a natural and probable consequence of the target crime.
Following this supplemental instruction, the trial court admirably allowed each attorney an additional five minutes to argue the applicability of the supplemental instruction. The prosecutor highlighted the concept by an example that well illustrated the rule: "[I]t is an objective test based on, not what he actually intended, did he [in]tend for that specific weapon? It is not that. It is an objective test based upon what a person of reasonable and ordinary prudence would have expected likely to occur. [¶] . . . [¶] So here they're acting in concert. They're carrying around these AK-47's, loading that one in the car, the AK-47 in the Suburban, loading other items in, and it is reasonably likely to occur. It is a natural and probable consequence that not just those AK-47's, but the AR-10 and AR-15 are also a product of that. So I ask you to consider that instruction in light of the aiding and abetting." (Italics added.)
The instruction seemed to satisfy the jury's concern. Less than an hour after the supplemental instruction and arguments were given, it arrived at a verdict.
Lack of prejudice is further indicated by the fact that the instructional error only affected counts two through five. It did not affect the verdict on count one, i.e., that defendant was guilty of conspiracy to transport or import assault weapons. In order for the jury to render the conspiracy verdict under the instructions, it had to find, beyond a reasonable doubt, that defendant (1) agreed with Goodspeed to import a prohibited assault weapon into California; (2) at the time of the agreement defendant intended that at least one of them would commit the crime of transporting that weapon into this state; and (3) the conspirators committed at least one overt act in furtherance of the illegal object of the conspiracy.
By convicting defendant on the conspiracy count, the jury necessarily found that he intended to and did agree with Goodspeed to import at least one illegal weapon into this state. The jury was thus convinced of defendant's guilt of at least one target offense. And, based on the evidence below, no reasonable jury could conclude that commission of the other charged transport offenses was not a natural and probable consequence of such a target offense.
For all of the foregoing reasons, we conclude there was no reasonable likelihood that the supplemental instruction was understood by the jury in a manner that violated defendant's rights. Furthermore, we are satisfied that any error in giving an incomplete or inadequate instruction on the natural and probable consequences doctrine did not result in prejudicial error. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
Somewhat inconsistently, defendant also contends that the instruction did not go far enough, because it did not tell the jury that it had to find the last two elements "beyond a reasonable doubt." We are unpersuaded. A common sense reading of the instruction makes it plain that all the elements of this theory of liability had to be proved beyond a reasonable doubt. (See fn. 8, ante.) It would be cumbersome and unreasonable to require a court to add the modifier "beyond a reasonable doubt" as to every single element.
V. Substantial Evidence of Guilt on Count Six
Defendant also attacks the sufficiency of the evidence to support the verdict finding him guilty of transporting a large-capacity magazine, i.e., one that has the capacity to hold more than 10 rounds, as alleged in count six. He points out there was no proof that he purchased the magazines, handled them, or looked inside the sealed boxes that held them. As the Attorney General points out, however, a large-capacity magazine was found in defendant's waistband. That fact alone was sufficient evidence to convict defendant on count six. (Jorge M., supra, 23 Cal.4th at pp. 869-870, 887.)
VI. Additional Conduct Credits Under Section 4019
Citing our miscellaneous order deeming the issue to be raised on all pending appeals (Misc. order No. 2010-002), defendant claims he is entitled to additional conduct credits accorded to qualifying prisoners by retroactive application of the amendment to section 4019, effective January 25, 2010, which increased the amount of conduct credits available for those convicted of nonserious felonies. A subsequent amendment modified that formula. Defendant was sentenced before January 25, 2010, and was not convicted of a serious felony, so the issue is properly raised.
The Attorney General contends the amendments should not be given retroactive effect. Until the issue is finally decided by the California Supreme Court (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963), we conclude, for the reasons that follow, that the amendments apply to all defendants sentenced prior to those effective dates.
In October 2009, the Legislature passed Senate Bill No. 18X, which, among other things, revised the accrual rate for conduct credits under section 4019. The parties agree that the amendment became effective on January 25, 2010. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.)
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Stats. 2010, ch. 426, § 1), which amended section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (§ 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18, when the person served an odd number of days in presentence custody. (Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50.) Section 2 of Senate Bill No. 76 also eliminates the directive in former section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (§ 4019, subd. (e).)
Neither of the amendments states that it is to be applied prospectively only. Consequently, we conclude the amendment increasing the rate for earning presentence conduct credit applies retroactively to defendants sentenced prior to those effective dates. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 [applying the rule of Estrada to an amendment involving conduct credits]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits].)
The order granting probation shows that defendant served 55 days of actual custody and received 26 days of conduct credit. Applying the new formula mandated by the aforementioned amendments, defendant is entitled to one day of conduct credit for each day of actual confinement. He is therefore entitled to 55 days of conduct credit, instead of the 26 days that he was given. We shall therefore order that the order granting probation be modified to grant him 29 additional days of presentence credit.
The superior court is directed to prepare an amended order granting probation that reflects an award of 55 days of conduct credit instead of 26. The clerk of the court shall forward a certified copy of the amended order of probation to the Placer County Probation Department. So modified, the judgment (order granting probation) is affirmed.
RAYE , P. J.
HULL , J.