P. v. Walker

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Filed 5/24/07 P. v. Walker 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND WALKER,
Defendant and Appellant.
C051926
(Super. Ct. No. SF093973A)
A jury found defendant Raymond Walker guilty of first
degree murder and attempted second degree robbery, finding true
the special circumstance that defendant committed the murder
during the commission of the attempted robbery, and also finding
true the special allegations that he personally used a firearm
with respect to both counts. The court sentenced defendant to
an aggregate term of 10 years plus life in prison without the
possibility of parole.
On appeal, defendant contends reversal of judgment as to
both counts is required because (1) without defendant’s

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statement to police, there was insufficient evidence to
establish the corpus delicti for attempted robbery, and (2) his
statement to police was the result of coercion and therefore
inadmissible. Defendant also contends the trial court’s
imposition of the upper term as to the gun use enhancement for
counts 1 and 2 violated his Sixth Amendment rights under
Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856; 166
L.Ed.2d 856] (Cunningham). We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of November 11, 2004, defendant left his
apartment after having a fight with his live-in girlfriend,
Dominic Laws (with whom he had a child), about “bills and money
and [defendant’s] reluctance to help out with support of their
child.” He returned early the next morning, intoxicated and
“ranting and raving,” and continued to argue with Laws about
money. After pacing back and forth for awhile, defendant left
wearing a dark hooded sweatshirt and dark pants.
That same morning, Chandrika Dip, a taxicab driver, left
for work at approximately 6:15 a.m. His wife gave him about $4,
which he added to the $3 already in his wallet. He had no
injuries to his face when he left for work that morning.
Sometime before 7:15 a.m., Dip picked the defendant up
outside the bus station across the street from defendant’s
apartment. Defendant asked to be taken to Conway, but had Dip
take several detours along the way. He eventually told Dip to
stop on Kansas Street, a short distance from a school. Dip

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asked for the cab fare, but defendant did not have any money to
pay it. Instead, defendant pulled a gun from the front pocket
of his sweatshirt, pointed it at Dip and said something like,
“give me your money.” Dip told defendant he did not have any
money. When Dip reached for the gun, defendant shot him,
hitting him in the forehead and killing him.
Defendant got out of the cab, walked around to the driver’s
side and shook Dip, trying to “wake him up.” He checked Dip’s
pants pockets for money, causing several small pieces of paper
to fall out of Dip’s left front pocket. He did not check the
pockets of Dip’s coat.1 Not finding any money, he put the car in
park, turned the engine off, closed the door and left.
Defendant arrived at the home of his sister, Shaneen
Walker, sometime between 7:00 and 8:00 a.m. that morning. He
was jittery and smelled of alcohol, and looked like he had been
up all night. Defendant was still wearing the hooded sweatshirt
he had put on earlier that day. He told his sister he
accidentally shot a cab driver over by the school, telling her
he struggled with the driver for the gun and it went off “on
accident.” When his sister asked if he was trying to rob the
cab driver, defendant said, “No,” and told her he thought,
1 During the police interview, defendant was asked whether he
searched Dip’s shoes for money. Defendant responded, “I don’t
know.” It also appears that he may have made an inaudible
response denying that same question earlier in the interview.

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“maybe the cab driver thought I was trying to rob him.” Shaneen
urged defendant to turn himself in.
After changing into some clothes his sister gave him,
defendant made two phone calls, one to an individual later
identified as Kenta Banks. He told Banks that he shot a cab
driver. Banks showed up at Shaneen’s house approximately 40
minutes later and, after staying another half-hour or so, left
with the defendant, who took his clothes and the gun and told
Shaneen he was going to get rid of them. Banks took defendant
to the levee and defendant threw the gun in the water.
Approximately 7:15 a.m. that morning, several young girls
walking to school noticed the taxicab parked on Kansas Street.
Thinking it was unusual that the headlights were on and the
windshield wipers were part way up, they went to take a closer
look. The girls saw Dip slumped in the driver’s seat with his
head and body leaning towards the passenger side of the car.
There was blood on the passenger seat. One of the girls called
911 while the others ran to school and reported what they saw to
school officials.
Emergency personnel arrived on the scene approximately 7:30
a.m. and removed Dip’s body from the car. There was a
significant amount of blood on the center console, as well as
the passenger seat. The keys were still in the ignition and the
meter was still running. Several small pieces of paper were
found on the floorboard on the driver’s side of the cab.
Sheriff’s deputies found 91 cents in Dip’s pocket.

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Laws returned home that evening sometime after 5:00 p.m.
Defendant was already there when she arrived; however, he was
wearing different clothes than those he had been wearing when he
left the apartment that morning. Defendant told Laws he shot a
cab driver, but repeated over and over that it was an accident,
saying nothing about robbing or attempting to rob the driver.
An autopsy revealed that Dip died of a single gunshot wound
to the right forehead. He had minor injuries to his face
(abrasions of the forehead and a tiny cut on his chin) suffered
either before or contemporaneously with the gunshot wound. The
coroner concluded the gunshot was most likely fired two to six
inches away from Dip’s head.
A police criminalist examined the cab and noted, among
other things, that (1) the glove compartment did not appear to
have been “rifled” through, (2) the center console did not
appear to have been opened after the blood was deposited on it,
and (3) Dip’s wallet was still in the center console.
Police received phone calls on November 17 and 18, 2004,
from an unidentified female, identifying defendant as a suspect
and providing information as to his whereabouts. Defendant was
arrested at his home and taken into custody without incident.
The information charged defendant with first degree felony
murder in violation of Penal Code section 1872 (count 1) and
2 Hereafter, undesignated statutory references are to the
Penal Code.

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attempted second degree robbery in violation of sections 664 and
211 (count 2). A special circumstance was also charged as to
count 1, alleging that the murder was committed while defendant
was attempting to commit the crime of robbery within the meaning
of section 190.2, subdivision (a)(17)(i).3 Firearm enhancements
were alleged as to both counts -- intentional and personal
discharge of a firearm causing great bodily injury in violation
of section 12022.53, subdivision (d) as to count 1, and personal
use of a firearm in violation of section 12022.5, subdivision
(a) as to count 2.
Prior to trial, defendant filed a motion to dismiss count 2
pursuant to section 995. The motion was denied.
Following a jury trial, defendant was found guilty of both
counts. The jury found true the special circumstance
allegation, as well as the allegation of use of a firearm as to
both counts.4
Prior to sentencing, defendant filed a motion, pursuant to
section 1181 for new trial and modification of the verdict,
arguing there was insufficient evidence to support the jury’s
3 In reviewing the probation report at sentencing, the
parties agreed that the reference to section 190.2, subdivision
(a)(17)(i) (regarding “train wrecking”) in both the information
and the probation report was incorrect, and further agreed to
revise the probation report to reflect the corrected reference
as section 190.2, subdivision (a)(17)(A) (regarding “robbery”).
4 By agreement of the parties, the gun use allegation as to
count 1 was changed to allege section 12022.5, subdivision (a)
in order to accurately reflect the jury’s verdict.

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verdict that he committed the killing in order to carry out or
advance the commission of the robbery. The section 1181 motion
was denied.
The court sentenced defendant to a term of life without the
possibility of parole as to count 1, plus the upper term of 10
years for the gun use enhancement. The court also imposed the
midterm sentence of two years for count 2, plus 10 years for the
gun use enhancement, both of which were stayed pursuant to
section 654.
Defendant filed a timely notice of appeal.
DISCUSSION
I.
Independent Proof of the Corpus Delicti of Attempted Robbery
Defendant contends that the evidence at trial was
insufficient to establish the corpus delicti of attempted
robbery. He also challenges the constitutionality of section
190.41 (proof of special circumstance by defendant’s
extrajudicial statement) as it applies to felony-based special-
circumstance allegations. We disagree with the first contention
and therefore need not address the second.
“In every criminal trial, the prosecution must prove the
corpus delicti, or the body of the crime itself--i.e., the fact
of injury, loss, or harm, and the existence of a criminal agency
as its cause. In California, it has traditionally been held,
the prosecution cannot satisfy this burden by relying
exclusively upon the extrajudicial statements, confessions, or

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admissions of the defendant. [Citations.] Though mandated by
no statute, and never deemed a constitutional guaranty, the rule
requiring some independent proof of the corpus delicti has roots
in the common law. [Citation.] California decisions have
applied it at least since the 1860’s. [Citation.]
[¶] Virtually all American jurisdictions have some form of rule
against convictions for criminal conduct not proven except by
the uncorroborated extrajudicial statements of the accused.
[Citations.] This rule is intended to ensure that one will not
be falsely convicted, by his or her untested words alone, of a
crime that never happened. [Citations.] [¶] . . . [¶] The
independent proof may be circumstantial and need not be beyond a
reasonable doubt, but is sufficient if it permits an inference
of criminal conduct, even if a noncriminal explanation is also
plausible. [Citations.] There is no requirement of independent
evidence ‘of every physical act constituting an element of an
offense,’ so long as there is some slight or prima facie showing
of injury, loss, or harm by a criminal agency. [Citation.] In
every case, once the necessary quantum of independent evidence
is present, the defendant’s extrajudicial statements may then be
considered for their full value to strengthen the case on all
issues. [Citations.]” (People v. Alvarez (2002) 27 Cal.4th
1161, 1168-1169, 1171, fn. omitted.)
“[T]he corpus delicti of a felony-based special
circumstance enumerated in paragraph (17) of subdivision (a) of

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Section 190.2 need not be proved independently of a defendant’s
extrajudicial statement.” (§ 190.41.)
There is sufficient evidence, separate from defendant’s
statement to investigators, that Dip was killed during the
course of an attempted robbery. Defendant’s girlfriend, Laws,
told investigators she had a fight with defendant over money the
evening prior to the shooting, and that they continued the fight
in the early morning hours just before the shooting. It is
reasonable to infer that defendant, having left the apartment
angry about his fight with Laws, saw an opportunity to cure his
financial problems when he boarded Dip’s taxi at the bus station
across the street and directed him to an area where witnesses
were not likely to see or interfere. There is no indication the
interior of the cab was disheveled, yet police found several
small papers on the driver’s side floorboard, as well as Dip’s
shoes, raising an inference that the killer also rummaged
through Dip’s pockets, and perhaps his shoes, for money. The
location of the cab on the side of Kansas Street, the shot to
Dip’s right forehead fired from close range and the cuts and
abrasions to his face all suggest Dip stopped the cab and turned
to speak with his passenger, and may have struggled with him,
prior to being shot. Further, when the cab was discovered, the
lights were on and the meter was still running suggesting Dip’s
last passenger led Dip to believe that he was a legitimate fare-
paying rider. As such, the passenger was able to coax Dip to a
more remote area in order to rob him of his money. Indeed,

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these facts tend to rule out any inference that the killing was
nothing more than a random act of violence or the result of a
personal vendetta against Dip.
We find these facts sufficient to establish prima facie
evidence of attempted robbery. We are not persuaded by the fact
that Dip’s wallet was found inside the center console, given the
testimony from numerous witnesses that the console was covered
with a significant amount of blood which, if disturbed, would
likely have left evidence of the identity of the killer. Given
that the beginning of the school day was fast approaching, it is
also likely the perpetrator was in a hurry and gave up the
search for money after checking Dip’s pockets and coming up
empty. As for the presence of Dip’s shoes on the driver’s side
floorboard, there is no evidence the emergency responders took
them off when they removed Dip’s body from the cab. While it is
true it may have been Dip’s habit to drive without shoes, it is
equally possible, and reasonable to infer, that his shoes were
removed by the killer in search of money.
Defendant attempts to distinguish the facts of this case
from those in People v. Ray (1996) 13 Cal.4th 313 (Ray), a case
relied upon by the trial court in its denial of defendant’s
motion for new trial. In Ray, two armed strangers wearing
fatigues approached Mark Doss and Kathy Hyde late at night in a
parking lot outside a bar. Doss and Hyde were ordered to
“retreat to a darker, less visible area.” Doss was shot when he
resisted, but survived. Hyde was shot when she attempted to run

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away and died several days later at the hospital. (Id. at
pp. 326-327.) Among other things, the jury found the defendant
guilty of first degree murder of Hyde and attempted robbery of
both Hyde and Doss, and found true the special-circumstance
allegation that Hyde was murdered during the commission or
attempted commission of a robbery. (Id. at p. 325.) The case
was automatically appealed to the California Supreme Court
following the trial court’s imposition of the death sentence.
(Ibid.)
On appeal, defendant urged that, apart from his pretrial
confession, there was no evidence from which the jury could
conclude that Hyde was murdered during the course of an
attempted robbery. (Ray, supra, 13 Cal.4th at pp. 341-342.)
This state’s high court disagreed, finding evidence of an
attempted robbery based on “a strong inference that the victims
were selected at random,” the fact that “the gunmen behaved in a
purposeful fashion and immediately ordered the victims to
retreat to a more obscure area of the parking lot,” and the fact
that both Doss and Hyde were shot when they resisted. (Id. at
p. 342.) “Since the jury could reasonably conclude the
perpetrators intended to steal the victims’ property at
gunpoint,” the court ruled, “the corpus delicti rule is
satisfied insofar as it required independent proof of attempted
robbery.” (Ibid.)
Defendant argues his case is different because taxicabs are
“usually randomly selected for any purpose,” and the cab was

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found directly across from a public school between 6:15 and 7:20
a.m. We are not persuaded. The fact that cabs are “usually
randomly selected for any purpose” only drives home the point
that defendant randomly chose Dip’s cab for the purpose of
robbing the driver, whoever it was, and did not have some other
motive (e.g., a personal vendetta against Dip) for killing him.
As in Ray, where the perpetrators purposefully moved the victims
to a more obscure area, defendant had Dip stop not in front of
defendant’s sister house or the home of a friend, but rather in
front of a school not yet open for morning classes, insuring
there would be less of a chance that someone would witness the
crime.
Defendant also argues that, because there is no evidence
anything was actually taken from Dip, there is no evidence to
prove that the “charged crime actually happened.” Not so.
Although defendant attempted to rob Dip, there was nothing to be
had, save 91 cents in Dip’s pocket and $7 in a wallet inside of
a blood-covered console. Having already discussed why it is
likely the wallet was not taken from the console, we turn to the
91 cents and, with little effort, imagine that a would-be
robber, having just shot and killed the cab driver in an attempt
to take whatever fares he had earned that day, would not likely
be enticed by pocket change.
We find there is sufficient evidence to make a prima facie
showing of attempted robbery. Having done so, we need not
address defendant’s constitutional challenge to section 190.41.

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II.
Admissibility of Defendant’s Statement to Police
Defendant contends his statement to the police was obtained
through coercion and is therefore inadmissible. In particular,
defendant urges that, “[t]here was an implied promise that if he
said he got into the cab and the driver was wary and paranoid,
leading to a struggle in which the gun accidently [sic] fired he
would not be charged.” The argument is not supported by the
record.
Admission of involuntary statements violates a defendant’s
constitutional right to due process. (Jackson v. Denno (1964)
378 U.S. 368, 376 [12 L.Ed.2d 908, 915]; U.S. Const., 5th & 14th
Amends.) “A defendant’s admission . . . challenged as
involuntary may not be introduced into evidence at trial unless
the prosecution proves by a preponderance of the evidence that
it was voluntary. (Lego v. Twomey (1972) 404 U.S. 477, 489 [30
L.Ed.2d 618]; People v. Markham (1989) 49 Cal.3d 63, 71.) A
confession or admission is involuntary, and thus subject to
exclusion at trial, only if it is the product of coercive police
activity. (Colorado v. Connelly (1986) 479 U.S. 157, 167 [93
L.Ed.2d 473]; [citation].)” (People v. Williams (1997) 16
Cal.4th 635, 659 (Williams).) “[T]he terms ‘coerced’ and
‘involuntary’ confessions [are used] interchangeably to refer to
confessions obtained by physical or psychological coercion, by
promises of leniency or benefit, or when the ‘totality of
circumstances’ indicates the confession was not a product of the

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defendant’s ‘free and rational choice.’” (People v. Cahill
(1993) 5 Cal.4th 478, 482, fn. 1.) “[W]here a person in
authority makes an express or clearly implied promise of
leniency or advantage for the accused which is a motivating
cause of the decision to confess, the confession is involuntary
and inadmissible as a matter of law.” (People v. Boyde (1988)
46 Cal.3d 212, 238.)
“On appeal, we review independently the trial court’s
determination on the ultimate legal issue of voluntariness.
[Citation.] But any factual findings by the trial court as to
the circumstances surrounding an admission or confession,
including ‘“the characteristics of the accused and the details
of the interrogation” [citation],’ are subject to review under
the deferential substantial evidence standard. [Citation.]”
(Williams, supra, 16 Cal.4th at pp. 659-660.)
Defendant aptly notes that the use of deception “has long
been approved as a means to interrogate and obtain information.”
“Police trickery that occurs in the process of a criminal
interrogation does not, by itself, render a confession
involuntary and violate the state or federal due process clause.
[Citation.] Why? Because subterfuge is not necessarily
coercive in nature. [Citation.] And unless the police engage
in conduct which coerces a suspect into confessing, no finding
of involuntariness can be made. [Citations.] [¶] So long as a
police officer’s misrepresentations or omissions are not of a
kind likely to produce a false confession, confessions prompted

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by deception are admissible in evidence. [Citations.]” (People
v. Chutan (1999) 72 Cal.App.4th 1276, 1280; see In re Walker
(1974) 10 Cal.3d 764, 777 [statement of wounded defendant
admissible even though elicited by false statement that he might
die before he reached the hospital and should talk to close the
record] and People v. Watkins (1970) 6 Cal.App.3d 119, 125
[statement of defendant who was falsely told his fingerprints
had been found on the getaway car nonetheless admissible because
the deception was unlikely to produce an untrue confession].)
Defendant also properly concedes that exhortations to tell
the truth unaccompanied by threats or promises do not in and of
themselves show overreaching, and that officers are not
precluded from discussing any advantage or other consequence
that will naturally accrue in the event defendant speaks
truthfully about the crime. (People v. Jackson (1980) 28 Cal.3d
264, 299, disapproved on other grounds in People v. Cromer
(2001) 24 Cal.4th 889, 901, fn. 3.) Nonetheless, he argues that
implicit in the detectives’ deceptive statements, exhortations
to tell the truth and stories of other accidental shootings was
a promise that he would not be charged at all if he told police
the killing was an accident.
Our review of the record, and particularly the transcript
of Seraypheap and Rodriguez’s interview of defendant, reveals
that there was never any promise, express or implied, of
leniency, let alone a promise that defendant would not be
charged with any crime if he told police the killing was

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accidental. While there is no doubt that Seraypheap and
Rodriguez made a number of deceptive statements during the
interview -- that they had defendant’s fingerprints in the cab,
that children saw defendant exiting the cab, that the victim was
known to carry a weapon, that what took place was an accident,
that defendant had been picked out of a photo lineup, that
police had been looking for defendant “for some time” to talk to
him about the incident, and that the taxicab was wired for audio
recordings -- those false statements were not likely to produce
a false confession. They simply gave the impression that the
police had more evidence implicating defendant than they
actually did.
Defendant began the interview by denying having ever gotten
into the cab. Apparently believing police had evidence to the
contrary, he admitted he was in the cab, at which point
Seraypheap urged him to tell the truth about what happened. The
detectives suggested it might have been an accident, but also
suggested there could be other plausible explanations, such as a
fight. In short, defendant was led to believe the police had
evidence they did not have, and was given the opportunity to be
truthful. He responded to that opportunity by ultimately
confessing that he got into the cab angry after a fight with his
girlfriend and, after demanding money from Dip, “accidentally”
shot and killed Dip when they struggled for the gun.
Defendant urges that, by telling him about other instances
in which accidental shootings did not result in criminal charges

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being filed, the detectives implied that defendant would
similarly not be charged if he admitted the shooting was
accidental. Not so. When defendant asked if he was “being
charged with murder,” Seraypheap replied, “Well it depends, it
depends what happened inside the cab,” telling defendant, “You
need to explain yourself, what happened,” and suggesting there
could be any number of possible explanations for what occurred,
including an accident or a fight. Defendant was not told that
accidental shootings never result in criminal charges, nor was
he told or led to believe that he would not be charged if he
admitted the shooting was unintentional. Indeed, defendant
demonstrated that he understood that the contrary was true when
detectives asked him if it was an accident and he replied,
“Either way I go man, is, is a murder. I’m . . . that’s life
all off the top.” We find no implied promise of leniency in
this record.
III.
Imposition of Upper Term for Gun Use Enhancements
Defendant contends imposition of the upper term as to the
gun use enhancements was unconstitutional in the absence of a
jury’s finding of the aggravating circumstances beyond a
reasonable doubt.
The People first argue that defendant has forfeited the
issue because he did not raise it in the trial court. We
disagree.

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Defendant was sentenced on January 23, 2006. Before that,
on June 20, 2005, our Supreme Court had decided People v. Black
(2005) 35 Cal.4th 1238 (Black), which held that a defendant does
not have a right to have a jury determine aggravating factors
used to impose the upper term. (Id. at p. 1244.) Because Black
was controlling law at the time of defendant’s sentencing, he
was not required to make a futile objection at that time. It is
pointless to require a defendant to ask a trial court to
overrule a decision of the California Supreme Court. (Moradi-
Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287,
292, fn. 1.)
Next, the People argue the sentence does not violate the
rule of Cunningham given the trial court’s reliance on factors
to which no right to jury trial attaches.
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d
435] (Apprendi), the Supreme Court held that other than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be tried to a
jury and proved beyond a reasonable doubt. (Apprendi, supra, at
p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the
statutory maximum is the maximum sentence that a court could
impose based solely on facts reflected by a jury’s verdict or
admitted by the defendant. Thus, when a sentencing court’s
authority to impose an enhanced sentence depends upon additional
fact findings, there is a right to a jury trial and proof beyond
a reasonable doubt on the additional facts. (Blakely v.

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Washington (2004) 542 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-
414] (Blakely).)
In Cunningham, the Supreme Court held that by “assign[ing]
to the trial judge, not to the jury, authority to find the facts
that expose a defendant to an elevated ‘upper term’ sentence,”
California’s determinate sentencing law (DSL) “violates a
defendant’s right to trial by jury safeguarded by the Sixth and
Fourteenth Amendments.” (Cunningham, supra, 549 U.S. at p. ___
[166 L.Ed.2d at p. 864], overruling Black, supra, 35 Cal.4th
1238 on this point, vacated in Black v. California (Feb. 20,
2007) ___ U.S. ___ [167 L.Ed.2d 36].)
Here, however, the trial court cited as a basis for
imposing the upper term the fact that “defendant has numerous
prior convictions as an adult and sustained juvenile petitions
as a juvenile,” as well as the fact that defendant served a
prior prison term and that he was on parole when he committed
the murder in this case.5
The imposition of the upper term based on these facts did
not violate the rule of Apprendi, Blakely, and Cunningham
because that rule does not apply to an aggravated sentence based
on a defendant’s prior convictions. (Apprendi, supra, 530 U.S.
at p. 490 [147 L.Ed.2d at p. 455].)
5 The court also cited, as additional aggravating factors,
defendant’s unsatisfactory prior performance on probation and
parole, and that defendant “was a convicted felon and was
legally prohibited from possessing a firearm.”

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One valid aggravating factor is sufficient to expose
defendant to the upper term. (People v. Cruz (1995) 38
Cal.App.4th 427, 433.) Here, there were three valid aggravating
factors relating to his prior criminal adjudications and
convictions. We are satisfied beyond a reasonable doubt that
the trial court would have imposed the upper term based on those
three valid factors alone and, indeed, on the sole fact of
defendant’s prior criminal convictions. Therefore, any error in
considering that defendant was a convicted felon in possession
of a firearm and that his prior performance on probation and
parole had been unsatisfactory was harmless. (Chapman v.
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710].)
DISPOSITION
The judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
BLEASE , Acting P.J.
MORRISON , J.

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