Opinion
NOT TO BE PUBLISHED
APPEAL from the judgments of the Superior Court of Los Angeles County No. LA060363, Darlene E. Schempp, Judge.
A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Kevin D. Hernandez.
Tara K. Hoveland, under appointment by the Court of Appeal, for Defendant and Appellant Paul Sanchez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.
GRIMES, J.
SUMMARY
Defendants, Kevin D. Hernandez and Paul Sanchez, were charged by information with a single count of criminal threats (Pen. Code, § 422). The information also included gang (Pen. Code, § 186.22, subd. (b)(1)(B) & (C)), firearm (Pen. Code, § 12022.53, subds. (b) & (e)(1), ) and hate crime allegations (Pen. Code, § 422.75, subd. (b)). At the close of the prosecution’s case, the Penal Code section 186.22, subdivision (b)(1)(B) enhancement was stricken from the information, and only the subdivision (b)(1)(C) gang enhancement remained. Defendants were convicted on the criminal threat count, and the hate crime and gang allegations were found true. As to each defendant, the trial court imposed a five year enhancement under the dismissed Penal Code section 186.22, subdivision (b)(1)(B) allegation. Defendants contend that the trial court erred by: (1) imposing a gang enhancement under the dismissed allegation; and (2) admitting into evidence photographs taken from MySpace. We affirm.
FACTS
On October 16, 2008, at approximately 1:00 p.m., Joseph Bowman got off a bus at the corner of De Soto Avenue and Saticoy Street, in Canoga Park, California. His home was a short distance from the bus stop. After he got off the bus, he heard the two defendants yelling at him, trying to get his attention. Defendants were calling Bowman “n’r, ” (the “n” word), asking him where he was going, and stating he was in their neighborhood. Defendants had beers in their hands and followed Bowman as he made his way home. When Bowman reached the alley behind his house, he started running and defendants gave chase. Bowman hopped the wall from the alley into his backyard. He ran for the sliding glass door at the back of his home, but it was locked. Defendant Sanchez jumped over the wall to Bowman’s house, and again called Bowman the “n” word. Bowman let his three Italian Mastiff dogs loose from their dog run, hoping that the dogs would scare Sanchez away. Sanchez jumped onto a cement barbeque, and the dogs barked and lunged at him. Sanchez pulled out a gun and said that he’d shoot Bowman and the dogs.
While this was happening, defendant Hernandez was sitting on top of the wall between the alley and Bowman’s house, drinking a beer, calling Bowman the “n” word, and telling Bowman that he’d “f’ed up.” Defendant Hernandez also accused Bowman of tagging graffiti in the alley. Defendants said they were from Canoga Park Alabama Street, made “C” hand gestures, and asked Bowman if he gangbanged. Sanchez eventually hopped off the barbeque into the alley, and Bowman ran for the side of his house, crawled through an open window, and called the police. Defendants were later taken into custody after Bowman identified them. No gun was recovered by police.
DISCUSSION
Defendants contend that the trial court erred by: (1) imposing a gang enhancement under the dismissed allegation; and (2) admitting evidence of photographs taken from MySpace.
1. Gang enhancement.
The information alleged two gang enhancements, under Penal Code section 186.22, subdivision (b)(1)(B) and (C) (hereafter subdivision (b)(1)(B) and subdivision (b)(1)(C), respectively). However, after presenting its case-in-chief, the prosecutor dismissed the subdivision (b)(1)(B) allegation, and proceeded only on the subdivision (b)(1)(C) allegation. Nevertheless, the jury was instructed generally as to section 186.22, subdivision (b)(1), and found the gang allegation to be true. The trial court -- over defendants’ objection -- imposed a sentencing enhancement of five years under subdivision (b)(1)(B), notwithstanding its prior dismissal. Defendants urge that their due process rights to adequate notice have been violated, and that the trial court lacked authority to impose the disputed enhancement. We disagree.
All section references are to the Penal Code unless stated otherwise.
a. The trial court did not violate defendants’ due process rights to adequate notice.
A defendant has a constitutional due process right to be advised of the charges against him in order to have a reasonable opportunity to prepare and present a defense. (People v. Jones (1990) 51 Cal.3d 294, 317; People v. Lohbauer (1981) 29 Cal.3d 364, 368-369.) As such, a defendant may not be convicted of an offense which is neither specifically charged in the accusatory pleading nor necessarily included within a charged offense. (People v. Parks (2004) 118 Cal.App.4th 1, 6-7.) Further, a defendant has a right to fair notice of the specific sentence enhancement allegations that will be relied upon to increase punishment for his crimes. (People v. Mancebo (2002) 27 Cal.4th 735, 745 (Mancebo); People v. Haskin (1992) 4 Cal.App.4th 1434, 1438 (Haskin).) Nevertheless, a variance between the information and sentence generally does not offend due process unless a defendant is misled to his prejudice in presenting a defense. (See People v. Ramirez (2003) 109 Cal.App.4th 992, 999 (Ramirez).)
Compare with Mancebo, supra, 27 Cal.4th 735, discussed below, which addresses due process issues when the information fails to comply with the express pleading requirements of a statute.
In this case, the information included gang allegations under both subdivision (b)(1)(B) and subdivision (b)(1)(C). Specifically, the information alleged as follows:
“It is further alleged pursuant to Penal Code section 186.22(b)(1)(B) that the above offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. Said act also caused the above offense to become a serious felony pursuant to Penal Code section 1192.7(c)(8).
“It is further alleged pursuant to Penal Code section 186.22(b)(1)(C) that the above offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members. Said act also caused the above offense to become a serious felony pursuant to Penal Code section 1192.7(c)(8).”
The allegations are identical, except for the subdivision references.
The difference between subdivisions (b)(1)(B) and (b)(1)(C) is that subdivision (b)(1)(B) provides for an enhanced sentence of five years for gang-related serious felonies, as defined by section 1192.7, subdivision (c), whereas subdivision (b)(1)(C) provides for an enhanced sentence of 10 years for gang-related violent felonies, as defined by section 667.5, subdivision (c). As such, the relevant subdivisions of section 186.22 differ only in the length of the additional term to be imposed, depending on whether the gang-related felony of which a defendant is convicted is serious or violent.
At the conclusion of the prosecutor’s case-in-chief, the subdivision (b)(1)(B) allegations were stricken. The subdivision (b)(1)(C) enhancement may be imposed only if a defendant is convicted of a violent felony under section 667.5, subdivision (c), which includes any felony committed with a firearm. (§ 667.5, subd. (c)(8).) However, the charged crime of criminal threats (§ 422) is not listed as a violent felony under the statute. (§ 667.5, subd. (c).) As such, the subdivision (b)(1)(C) allegation necessarily required the jury to find the gun allegation true in order for the trial court to impose the 10-year sentence enhancement called for by subdivision (b)(1)(C). However, the jury did not find true the gun allegation.
At the time of dismissal, the record reveals there was no discussion of the differences between the subdivisions. It appears the prosecutor was under the mistaken impression that she could proceed only under one “theory, ” and that when the trial court asked her which subdivision she was proceeding under, the prosecutor answered “(b)(1)(C).” Therefore, the court struck the subdivision (b)(1)(B) allegation.
The jury received the CALJIC No. 17.24.2 instruction as to the gang allegation. The instruction does not differentiate between subdivisions (b)(1)(B) and (b)(1)(C), and is silent as to the “serious” or “violent” felony differentiations. Instead, the instruction sets forth the test for whether a crime was committed “for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (CALJIC No. 17.24.2.) The verdict forms provided to the jury stated: “We find the allegation that the above offense was committed for the benefit of, at the direction of, and in association with a criminal street gang, within the meaning of Penal Code Section 186.22(b)(1)(C), to be_____________. (Insert ‘TRUE’ or ‘NOT TRUE.’)” The jury was not instructed as to the elements of subdivision (b)(1)(C), such as the requirement for a serious felony for the imposition of the lengthier sentence under this subdivision.
At sentencing, the trial court, realizing that the 10 year subdivision (b)(1)(C) enhancement could not be imposed due to the jury’s failure to find the gun allegation as true, nonetheless imposed the lesser subdivision (b)(1)(B) sentencing enhancement, reasoning that “I am finding this is a sentencing issue and that whether it was pled and proven or whether it is (C), the jury found the gang allegation to be true, and I am going along with it.”
Defendants contend that the sentence was unauthorized and violates their due process right to notice. Defendants principally rely on Mancebo, supra, 27 Cal.4th 735 and Haskin, supra, 4 Cal.App.4th 1434 for the proposition that resurrection of the stricken allegation by the trial court violated defendants’ due process right to adequate notice. As will be demonstrated below, their reliance is misplaced.
In Mancebo, the defendant had been charged by amended information for sexual assaults on two victims. The information included gun-use circumstances under the One Strike law (§ 667.61, subd. (e)(3)) and a gun-use enhancement under section 12022.5, subdivision (a). The jury found all gun-use allegations to be true, and at sentencing, the trial court imposed gun-use enhancements under section 12022.5, and substituted a multiple victim circumstance (§ 667.61, subd. (e)(5)) for the expressly pleaded gun-use circumstance (§ 667.61, subd. (e)(3)). Although the multiple victim circumstance was not specifically alleged in the information, the trial court reasoned that the circumstance was impliedly alleged since the information charged defendant with crimes against two victims. The trial court reasoned, therefore, the multiple victim implied finding proved the One Strike circumstance, freeing the gun allegation to be used for the section 12022.5 enhancement. The Supreme Court disagreed, finding that section 667.61, subdivisions (f) and (i) required specific allegations of the circumstance that warranted additional punishment, and a finding by the trier of fact that the alleged circumstance was true as to each victim. (Mancebo, supra, 27 Cal.4th at p. 743.) As such, the Supreme Court concluded that the sentence violated the express pleading and proof requirements of section 667.61. (Mancebo, at p. 743.)
This was done to avoid dual use of facts. (§ 1170, subd. (b).)
Section 667.61, subdivisions (f) and (i) provide: “(f) If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a) or (b), to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b), whichever is greater, rather than being used to impose the punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or the punishment under another provision of law can be imposed in addition to the punishment provided by this section. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other provision of law.... [¶]... [¶] (i) For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.” (Italics added.)
The People in Mancebo argued that the information -- as it alleged crimes against multiple victims -- satisfied due process fair notice requirements for the multiple victim circumstance, notwithstanding the fact that such a circumstance had not been explicitly stated. The Supreme Court disagreed, concluding that because the pleading and proof requirements of section 667.61 were not satisfied, defendant was not given fair notice of the allegations against him. (Mancebo, supra, 27 Cal.4th at pp. 752-754 [“We simply find that the express pleading requirements of section 667.61, subdivisions (f) and (i), read together, require that an information afford a One Strike defendant fair notice of the qualifying statutory circumstance or circumstances that are being pled, proved, and invoked in support of One Strike sentencing”].)
In Haskin, the information alleged a one-year enhancement under section 667.5, subdivision (b) for a prison term served for a prior burglary conviction. Section 667.5 provides for a sentence enhancement for a prior prison sentence for any felony. The information did not specify whether the prior burglary was residential or commercial. Defendant admitted the commission of a prior burglary, as charged, and the trial court then took judicial notice of the court records in the prior proceeding, and found that the prior burglary was residential. Therefore, the trial court imposed a five-year enhancement under a different section, reasoning that “it was a residential burglary, and, therefore, by operation of law, it’s five years, whether it’s pled five years or not five years.” (Haskin, supra, 4 Cal.App.4th at p. 1438.) The trial court relied upon an unalleged statute, section 667, which provides for a five-year enhancement for a serious felony. The Haskin court concluded that the information was factually insufficient to support the imposition of a five-year enhancement, because there were no allegations regarding the nature of the prior felony, such as whether the prior felony was serious. (Haskin, at p. 1439.) The Haskin court concluded that a court cannot accept an admission from a defendant, and later accept evidence that changes the character of the crime admitted to support an increased punishment based on that admission. (Id. at p. 1440.)
“[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony....” (§ 667.5, subd. (b).)
Section 667 requires a prior conviction for a serious felony, as defined by section 1192.7, subdivision (c). (§ 667, subd. (a).)
This case is distinguishable from the above discussed authorities. Here, the gang allegations were both pleaded and proven, and therefore the allegations in the information, and the matters submitted to the jury, were sufficient to support the sentence imposed by the trial court. With the exception of the statutory references, the information included identical allegations for each enhancement, clearly putting defendants on notice that gang allegations were being made, and that enhanced sentences -- of whatever duration -- were being sought on this basis. Also, evidence of gang affiliation was adduced at trial, and the jury was instructed as to the criteria for finding a gang enhancement. No differentiation between subdivisions (b)(1)(B) and (b)(1)(C) was requested by defendants or given in the instructions.
Further, the pleading and proof requirements of section 186.22 are not nearly as exacting as those in section 667.61, addressed in Mancebo, or as those in section 667, at issue in Haskin. No election was required to be made as between subdivisions (b)(1)(B) and (b)(1)(C) in the information. It could easily be discerned for due process purposes which enhanced penalty under subdivision (b)(1) will apply depending on whether the crime charged is a serious or violent felony. It was for the court to determine which sentence was appropriate once the jury found the gang allegation to be true, depending on the factual findings of the jury. The hyper-technical pleading requirements advocated by defendants are simply not consistent with the established law.
Several cases support this conclusion. In People v. Neal (1984) 159 Cal.App.3d 69 (Neal), defendant was charged with various sexual offenses, and the information also included weapons allegations under section 12022, subdivision (b). The jury found the allegations to be true, but the trial court enhanced defendant’s sentence under an unalleged section, 12022.3. Section 12022, subdivision (b) provides a one-year enhancement for any person using a deadly weapon in the commission of a felony, whereas section 12022.3 provides greater enhancements for weapons use. On appeal, defendant challenged the application of the section 12022.3 enhancement, reasoning that it was not alleged in the information and therefore violated his due process right to fair notice. The court disagreed, finding that all facts necessary to support the enhancement imposed by the trial court had been pleaded and proved. “Here the information fully informed appellant that he was charged with using a deadly weapon, ‘to wit, broken glass, ’ in the commission of the sex offenses. He therefore could not be surprised by proof of such use, nor can he say that the preparation of his defense to meet the facts would have been different if the information had alleged use under the provisions of section 12022.3, rather than section 12022, subdivision (b).” (Neal, supra, 159 Cal.App.3d at pp. 72-73.) The court found that the “misstatement of the code section relied on by the prosecution, indicating a lesser enhancement than that imposed” did not require modification of the judgment. (Id. at p. 73.) The Neal court concluded that modification of defendant’s sentence would only be justified if he was misled to his prejudice. (Ibid.)
Neal was sentenced to a three year enhancement under section 12022.3. (Neal, supra, 159 Cal.App.3d at p. 72.)
Ramirez is also instructive. In Ramirez, the defendant was charged with a violation of Penal Code section 191.5, subdivision (a), gross vehicular manslaughter while intoxicated, and Vehicle Code section 20001, subdivision (a), leaving the scene of an accident. He pled guilty to both violations and also agreed that the greater sentence provided for in Vehicle Code section 20001, subdivision (c) may be imposed as part of the negotiated disposition. The felony complaint did not specifically allege this penalty, and the statute expressly requires that such a penalty “shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.” (Veh. Code, § 20001, subd. (c).) The court determined that any variance between the complaint and negotiated disposition was immaterial, as no prejudice resulted, since the complaint specifically alleged the facts that defendant was a drunk driver who killed someone and fled the scene of the crime, which supported the increased penalty under subdivision (c). (Ramirez, supra, 109 Cal.App.4th at p. 1001.)
Likewise, People v. Tardy (2003) 112 Cal.App.4th 783 (Tardy) supports our conclusion. In Tardy, defendant was charged by information with robbery, and with having served eight prior prison terms within the meaning of section 667.5, subdivision (b), one prior violent felony conviction (robbery) within the meaning of the Three Strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and a serious felony conviction under section 667, subdivision (a). Defendant was convicted by the jury of the lesser included misdemeanor offense of petty theft. In a bifurcated proceeding, the trial court found true the allegation that defendant had suffered a prior violent felony conviction for purposes of the Three Strikes law. The court also found true a prior theft conviction under section 666, after the People informed the court that they would seek a felony sentence under this section, due to Tardy’s previous conviction of a qualifying theft offense. The trial court sentenced Tardy to prison pursuant to section 666. On appeal, Tardy argued that his due process rights were violated by the imposition of the sentence under section 666, reasoning that the information was silent as to this statute. The court disagreed, finding the statute did not require specific pleading and that due process was not offended, because due process does not require “that the statute be specifically alleged as long as the pleading apprises the defendant of the potential for the enhanced penalty and alleges every fact and circumstance necessary to establish its applicability.” (Tardy, at p. 787.)
Section 666 permits imposition of a prison sentence for a petty theft conviction, rather than jail, if the defendant has a prior theft conviction for which he went to prison.
In this case, defendants’ due process rights were not implicated, as all facts establishing the gang enhancement were alleged in the information. Any alleged error was in form rather than substance. The subdivision (b)(1)(B) allegation was not stricken until after the prosecution had presented its case, and therefore defendants’ motivation for cross-examination was unaffected by the dismissal. Further, defendants cannot reasonably claim to be surprised by the evidence offered at trial, as their gang affiliation was clearly at issue. We are not persuaded that defendants would have prepared their case any differently had they been aware of which sentence would be imposed. For example, the same motivation to resist the gun allegations plainly existed.
Although it could be argued that the dismissal may have influenced defendants to make a tactical decision to resist only the gun allegations, and leave the gang charges alone, such an argument is not supported by the defense actually presented. And, this court need not decide this issue, as the issue of prejudice was for the first time addressed in defendant Sanchez’s reply brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [“ ‘Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument’ ”]; People v. Newton (2007) 155 Cal.App.4th 1000, 1005 [same holding]; People v. Hudson (2009) 175 Cal.App.4th 1025, 1028 [same holding].) Therefore, we find no constitutional violation.
2. MySpace evidence.
Defendants next contend that the trial court improperly admitted images downloaded from the MySpace social networking Web site that purportedly were posted by members of the Canoga Park Alabama Street (hereafter Canoga Park Alabama) gang. First, defendants contend that insufficient foundation for admission existed. Second, defendants contend that the trial court abused its discretion under Evidence Code section 352, reasoning that the photos were unduly prejudicial. We agree that an insufficient foundation for admission of the photographs existed, but find the error to be harmless.
a. Sufficiency of the foundation for the MySpace pictures.
The trial court admitted into evidence -- over defendants’ objections -- two photographs downloaded from the MySpace Web site, which depicted a “No Trespassing” sign which read, “[N’s] will be shot, ” and a “Warning” sign which had the “n” word crossed out, and the initials “NK.” The People’s gang expert, Los Angeles Police Officer Raymond Diaz, testified that the images belonged to members of the Canoga Park Alabama gang, and that “NK” stood for “[n’r] killers.”
Defendants argue that insufficient foundation existed for admission of the photographs. A trial court’s ruling regarding the admissibility of evidence is reviewed for abuse of discretion. (People v. Thornton (2007) 41 Cal.4th 391, 444-445.)
A photograph or other writing may be authenticated by “the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.” (Evid. Code, § 1400.) Two kinds of evidence are generally used to authenticate a photograph, including: (1) the testimony of a person who was present at the time a film was made, who can aver that it accurately depicts what it purports to show; or (2) expert testimony, indicating that the photograph is not a composite or fake. (People v. Bowley (1963) 59 Cal.2d 855, 859-860.) Expert testimony may be used when the picture is probative in itself, that is, when it “ ‘speak[s] for itself.’ ” (Id. at p. 860.) In this case, the trial court concluded that the photographs were such documents. Also, the trial court excluded testimony from the custodian of records of MySpace, who offered to prove how MySpace searches are conducted, and how information is stored on the website. The Custodian of Records had no information about the origin of the photographs. The trial court sustained defendants’ objection that the evidence would be cumulative and time-consuming, and was of little probative value.
Respondent argues that the admission of the photographs was proper, relying on People v. Doggett (1948) 83 Cal.App.2d 405 (Doggett). In Doggett, the court upheld admission of a photograph that showed defendants committing a crime, although the defendants and victim -- who were present when the photograph was taken -- did not testify as to its authenticity. However, other evidence was introduced about when and where the photograph was taken, and that the people depicted in the photograph were defendants. Also, an expert testified that the photo had not been altered. This was deemed sufficient. (Id., at pp. 409-410.)
Our case is distinguishable, as neither testimony from a person present, nor expert testimony, was provided to authenticate the photographs. The only testimony was from the prosecution’s gang expert, who testified that the photos were located by a search of MySpace for various nicknames of documented Canoga Park Alabama gang members, as part of his intelligence-gathering activities on the gang. He provided no testimony about whether the images were accurate, had been modified, to whom they belonged, or where they originated. This is especially troubling, given the susceptibility of digital media to manipulation, and the capability of digital photographs to be shared, posted, and re-posted by numerous users. (People v. Beckley (2010) 185 Cal.App.4th 509, 515 [finding MySpace images which were admitted without testimony of expert or person with knowledge of the photographs lacked sufficient authentication].) Here, the record does not disclose evidence supporting the prosecution’s claim that the photographs are an accurate representation of Canoga Park Alabama gang activities or attitudes. As such, the MySpace evidence was improperly admitted.
The only remaining question is whether defendants were prejudiced by the erroneous admission of this evidence. Even if a trial court abused its discretion, a reviewing court will reverse a conviction only when a defendant is prejudiced by the error. (People v. Watson (1956) 46 Cal.2d 818, 836 [a reversal is appropriate when “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”].) We do not find that any prejudice was suffered by defendants, as ample evidence was adduced at trial in support of the gang allegations, and it is not reasonable to infer that the jury was influenced by introduction of the MySpace pictures.
The disputed evidence was introduced to demonstrate defendants’ motive. However, other evidence already supported defendants’ motive, such as testimony from the gang expert that Canoga Park Alabama members routinely target blacks and graffiti “NK, ” which stands for “[n’r] killers”; testimony from the victim, Joseph Bowman, that defendants repeatedly called him the “n” word; that defendants self-identified as members of the Canoga Park Alabama gang and asked what he was doing in their neighborhood; and evidence that the crime in fact occurred in Canoga Park Alabama gang territory. There was no testimony actually linking defendants to the MySpace pages. Also, other exhibits, such as pictures of graffiti taken by the gang expert, were introduced, which contained content similar to the disputed photographs.
To the extent that defendants summarily argue that their constitutional rights to a fair trial, due process, and confrontation of witnesses were violated by admission of the MySpace images, we find that the evidence adduced at trial was so overwhelming that even the higher harmless-error test articulated in Chapman v. California (1967) 386 U.S. 18 is satisfied. (Id. at p. 24 [establishing “harmless beyond a reasonable doubt” standard for federal constitutional violations].)
DISPOSITION
The judgments are affirmed.
WE CONCUR: BIGELOW, P. J., FLIER, J.