Opinion
B292476
04-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY PARCELL, Defendant and Appellant.
Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael R. Johnsen and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA454682) APPEAL from a judgment of the Superior Court of Los Angeles County, Robert Perry, Judge. Affirmed. Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael R. Johnsen and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Jeffrey Parcell was convicted by a jury of first degree burglary with a person present. (Pen. Code, § 459.) The trial court found true the allegations that appellant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)) which qualified as a prior strike (§§ 667, subds. (b) - (j); 1170.12). The trial court sentenced appellant to a total of 17 years in prison, consisting of the upper term of 6 years for the current conviction, doubled to 12 years pursuant to the three strikes law, plus a five-year enhancement term pursuant to section 667, subdivision (a).
All further unspecified statutory references are to the Penal Code.
On appeal Parcell contends the trial court abused its discretion in 1) admitting late-disclosed prosecution fingerprint evidence without proceeding stepwise through the sanctions options and 2) excluding a late-disclosed diary belonging to appellant's mother. He contends both decisions violated his federal constitutional rights and cumulatively prejudiced him. Defendant also makes three sentencing claims: 1) the court abused its discretion in refusing to strike his prior strike conviction; 2) the matter must be remanded to permit the trial court to consider whether to strike the section 667, subdivision (a) enhancement in light of Senate Bill No. 1393; and 3) imposition of fines and assessments without an ability-to-pay hearing violated his due process rights under People v. Dueñas (2019) 30 Cal.App.5th 1157. We affirm the judgment.
BACKGROUND
On February 17, 2017, Ines Hernandez, a live-in housekeeper for the Sedin family, entered the Sedin residence sometime between 12:00 and 1:00 p.m. When she opened the front door, she saw a tall overweight white man standing in the living room with some papers in his hand. At the preliminary hearing Hernandez identified appellant as that man, although at trial she was not 100 percent sure of her identification. The man turned and left the house through a partially open sliding glass door.
Hernandez went outside, saw appellant with some papers in his hand and asked him what he was doing in the house. Parcell replied he was looking for someone. Hernandez said she was going to call her employer. Appellant got into the driver's side of a white Toyota Scion and drove away. Hernandez used her cell phone to take a photograph of the vehicle and its license plate. She noticed appellant had dropped a piece of paper as he fled. Hernandez picked up the paper and brought it into the house.
Hernandez called Mr. Sedin and sent him the photograph of the car. He contacted his wife, Tammy Sedin, who came home and called the police. Tammy Sedin testified at trial that Hernandez showed her the dropped paper and Mrs. Sedin picked up the paper and brought it inside. Both agreed, however, that Mrs. Sedin gave the paper to a police officer who came to the house. Mrs. Sedin was an attorney, and the dropped paper was a legal document which she did not recognize as part of one of her cases.
A palm print was recovered from the sliding glass door at the Sedin residence and three fingerprints were recovered on the dropped document. The palm print did not match appellant's palm print. The fingerprints were not compared to appellant's until shortly before trial. One of them matched appellant's thumbprint.
Appellant's mother Vera Parcell (Vera) identified the car in Hernandez's photo as her son's.
Appellant offered an alibi defense. Michael Miller (Miller), a family friend and appellant's former grade school basketball coach, testified that on a Tuesday or Thursday in the first week of February 2017, he and appellant's father Chuck Parcell picked up appellant from his house in Pasadena and the three of them went to the University of Los Angeles's College of Divinity in Compton. Miller was a vice-president of the university and he wanted Chuck Parcell's help in designing the lay-out of the library and registrar's office. Chuck Parcell suggested appellant help as well. The date of the burglary was February 7, 2017, a Tuesday. Miller picked up Chuck Parcell and they drove to appellant's house, where they picked him up at about 1:00 p.m. The drive from appellant's house to the college took about 40 minutes, and they were at the college for about 2 hours.
Defense evidence included surveillance video from both Chuck Parcell's house and appellant's house. Miller confirmed that the video showed him picking up appellant at 13:35:54 and dropping him off at 17:13:06. The video showed Miller then arriving at Chuck Parcell's house at 17:21:33
Vera testified she had written in her diary every day for the past 20 years. She looked at her diary to refresh her recollection of events of February 7, 2017. She recalled that it was raining that day so she was home when Miller came by the house to pick up her husband; they left at about noon and her husband was home in time for dinner. She did not see appellant that day.
Vera Parcell also testified her husband had set up surveillance video systems at their house and at appellant's house. Appellant had access to the system at his own home.
Appellant also presented the expert testimony of Erin Lemaster, a digital forensic examiner. Lemaster opined the timestamp on the videos were not altered after they were exported from the recorder. She could not tell from the video if the settings had been altered before the video was exported. It might be possible to make such a determination by examining the recorder, but Lemaster did not undertake such a review.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion In Admitting The Late-Disclosed Fingerprint Evidence .
Appellant contends the trial court abused its discretion when it denied his requests to exclude late-disclosed fingerprint evidence or to give a jury instruction on that late-disclosed evidence. He contends admission of the late-disclosed evidence requires reversal because the trial court failed to proceed "stepwise" through possible sanctions to determine which best fit the situation, including failing to consider if a continuance would be appropriate. In addition, appellant contends the ruling violated his Fifth Amendment right to a fair trial and was prejudicial.
Section 1054.1 requires the prosecution to disclose broad categories of information to the defense and section 1054.7 requires disclosure to be made at least 30 days before trial. Section 1054.5 sets forth an array of orders which the trial court may make when the prosecution fails to make timely disclosure of the information listed in section 1054.1. The court may order "immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure." (§ 1054.5, subd. (b).) "The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted." (Id., subd. (c).)
"We generally review a trial court's ruling on matters regarding discovery under an abuse of discretion standard. [Citation.] In particular, 'a trial court may, in the exercise of its discretion, "consider a wide range of sanctions" in response to the prosecution's violation of a discovery order.' " (People v. Ayala (2000) 23 Cal.4th 225, 299.) To be adequate, a sanction should negate any tactical advantage which the offending party has gained. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757 (Gonzales).)
Defendant posits a requirement that the trial court must proceed "stepwise" through all possible sanctions to determine which sanction best fits the circumstances, including considering whether a continuance would be appropriate. The only "stepwise" requirement in section 1054.5 is found in subdivision (c), which provides that a court may prohibit the testimony of a witness only if all other sanctions have been exhausted. Thus, a court must consider the efficacy of lesser sanctions before imposing the sanction of exclusion of evidence. "[E]xclusion of evidence necessarily may affect the factfinding process and therefore, '. . . the potential prejudice to the truth-determining function of the trial process must also weigh in the balance.' [Citation.] Thus, the court must consider the extent to which exclusion of particular evidence may undermine the reliability of the fact finder's conclusion." (Gonzales, supra, 22 Cal.App.4th at p. 1757.) Generally, "absent a showing of significant prejudice and willful conduct, exclusion of testimony is not appropriate as punishment." (Id. at p. 1758.)
There is no ranking of sanctions within subdivision (b). The trial court's task is simply to select "whatever remedy would resolve or significantly resolve the disadvantage [created by late disclosure], for example, a continuance or a delay in presentation of the testimony to allow the surprised party the opportunity to prepare." (People v. Gonzales, supra, 22 Cal.App.4th at p. 1757.) The remedy for a discovery violation should be no broader than that necessary to guarantee a fair trial. (People v. Wimberly (1992) 5 Cal.App.4th 773, 792.)
Generally, a defendant's failure to request a continuance to meet late-disclosed evidence "is fatal to [his] contention on appeal. 'It is defendant's burden to show that the failure to timely comply with any discovery order is prejudicial, and that a continuance would not have cured the harm.' [Citations.]" (People v. Thompson (2016) 1 Cal.5th 1043, 1103 [noting that defendant had also failed "[e]ven now" on appeal "to assert how earlier disclosure . . . would have made any difference to her defense strategy]".)
It is undisputed that appellant did not request a continuance. The parties appeared on Monday, August 6, 2018, for a trial setting conference with an expected trial date of August 8, 2018. Defense counsel advised she had just been informed that morning that a fingerprint was found on the document dropped by the burglar, and that it matched defendant's fingerprint. She asked the calendar court to exclude the evidence. The prosecutor represented that "this paper had not been tested until this weekend. On Friday the lab contacted me and advised we just realized there was another piece of evidence along with the glass palm print [and] that [other evidence] had not been tested. Obviously they rush tested it and got me the report this morning." The prosecutor pointed out that section 1054.5 provided a variety of remedies for late discovery, including a continuance. The prosecutor stated, "We are not objecting if the defense wants to seek a continuance." The court turned to defense counsel, who did not request a continuance. The calendar court deferred the matter to the trial court.
On August 8, 2018, in the trial court, defense counsel again requested exclusion of the evidence or a jury instruction, without asking for a continuance or explaining why a continuance would have been ineffective.
Here appellant similarly fails to claim that a continuance would have been ineffective to cure any prejudice from the late disclosure. Indeed, he does not describe any prejudice from the timing of the disclosure. The only "prejudice" appellant describes is from the substance of the evidence, which linked him to the burglary. Under People v. Thompson, his claim that the admission of the late disclosed evidence requires reversal fails.
To the extent appellant also argues the prosecutor's conduct amounted to willful misconduct in an attempt to avoid subjecting the late-disclosed evidence to adversarial testing, the record does not bear out misconduct. The prosecutor represented the fingerprints were inadvertently overlooked by the laboratory until just before trial, and the trial court appeared to accept that representation. The prosecutor clearly stated the People were not opposed to a continuance to allow the defense to evaluate the evidence, which is contrary to appellant's hypothesis that the People were seeking a tactical advantage. Under these circumstances, exclusion as a punishment would not have been an appropriate sanction.
We assess the trial court's ruling based on the evidence or offers of proof before the court at the time of that ruling. (See People v. Hendrix (2013) 214 Cal.App.4th 216, 243.) Nevertheless, we note that the subsequent testimony of the forensic specialists generally supported the prosecutor's assertion that the fingerprint was accidentally overlooked and then checked for a match at the last minute. Larklyn Watts "processed" the document in February 2017 by putting a chemical on the document which revealed the fingerprints. Her job duties did not include analyzing fingerprints for a match. She forwarded her report and the developed prints for technical review and onward reporting. Rafael Medina testified that he received and analyzed the palm print in February 2017 but did not receive the fingerprints for analysis until his overnight shift for July 30-31, 2018. The prints were "processed" by someone else before he received them. He scanned the prints into the computer system and, after finding a match, prepared a report dated Friday, August 3, 2018. Medina then forwarded his report to be reviewed by a verifier, a tech reviewer and a supervisor. --------
The trial court did not abuse its discretion in denying appellant's requests for exclusion or an instruction. Appellant suggests generally that the late disclosure interfered with his federal constitutional rights to present a defense, challenge the prosecution's evidence, and confront the prosecution's witnesses. Appellant does not, however, explain why a continuance would not have given him enough time to adjust his defense theory or to challenge the late-disclosed evidence and confront the prosecution's witnesses. Although the evidence was disclosed late, it was disclosed before trial, and the People volunteered they were not opposed to a continuance. Appellant's federal constitutional right to a fair trial was not violated. II. Exclusion Of Vera's Diary Was Not Prejudicial .
On Thursday August 9, 2018, near the end of the People's case, the prosecutor informed the court that the defense had just identified appellant's mother Vera as an additional witness and had produced a copy of Vera's "diary entry that I can read a very small portion of." The court directed defense counsel to produce the complete diary to the prosecution for inspection. Defense counsel did not produce the diary until Monday, August 13, 2018, the day before Vera was scheduled to testify. The prosecution sought exclusion of the diary as a sanction for delayed disclosure. Appellant contends the trial court abused its discretion in excluding the diary without finding willful misconduct, the unavailability of lesser sanctions, and prejudice. He further contends the court erred in sustaining objections to three questions about the diary.
A. The trial court's ruling on the prosecution's request to exclude the diary.
After reviewing the two pages produced by the defense, the trial court indicated that "we need, certainly, several entries on both sides of this entry." The court stated that the prosecutor "would have the right to look at the rest of the diary." Defense counsel replied, "Absolutely." Defense counsel also stated: "I've given the People the page that has an entry regarding February 7th, 2017. That's all I have right now. I've asked [Vera] for the entire diary and I intend on bringing that in." The diary covered the years 2013, 2014, 2015, 2016 and 2017, and had one page for each date of the year, so that, for example, February 7, was one page with five entries for each of the five years.
Court was not in session on Friday, August 10. When trial resumed on Monday, August 13, 2018, the prosecutor moved to exclude the diary entry for February 7, 2017 on the ground it was hearsay and had only been partially disclosed to the prosecution on August 9, 2018. The prosecutor added defense counsel had brought the full diary to court just that morning. Defense counsel replied she had just received it from Vera that morning and had not herself seen it before that day.
The court asked why the diary had not been provided to the prosecution on August 9, 2018. Defense counsel did not answer directly. The court stated: "I anticipated that you would have produced the diary to the prosecution last Friday when we were dark so that the prosecution could review it." Defense counsel again did not reply directly. The prosecutor clarified that she had not yet had the opportunity to review the full diary. The court stated: "Well, this is what I thought would be going on on Friday when we were dark." The prosecutor replied, "Yes." Defense counsel stated: "It was my understanding, based on the conversations that we had, was that [Vera] would be bringing the diary this morning for the People." Vera was likely to testify the next day, August 14, 2018. The court stated: "That's not what I heard at all. I heard we're going to go dark, the defense is going to produce the diary so that the People would have a chance to look at this exhibit that was . . . sprung on them at the last minute."
The court repeatedly indicated that it was "troubled" by the situation and that it "[reeks] of fabrication." The court stated: "I was very troubled by the appearance of the diary and the selection of only two entries. [¶] . . . [¶] Two pages." Ultimately, the court ruled: "I think it's too late with the diary. You surprised the People. And that's the court's ruling." The court permitted appellant to call Vera, who was permitted to testify that she had refreshed her recollection by referring to her diary.
B. The trial court did not abuse its discretion in sustaining objections to certain questions about the diary.
The trial court permitted Vera to testify generally about keeping a diary. She also testified she used her diary entries to refresh her recollection about the events of February 7, 2017. The court sustained the People's relevancy objections to three questions related to the diary: "[W]hen do you make your entries?"; "[D]o you make your entries when they're fresh in your mind?"; and a third question about what Vera had for dinner that night. Appellant contends the trial court abused its discretion in sustaining the prosecution's objections to these questions related to the diary. We do not agree.
The timing of Vera's entries was relevant to the accuracy of those entries as a statement made close in time is more likely to be accurate than one made after a lapse of time. However, Vera had already testified: "I write . . . in my diary every day." She had already been asked how often she kept her diary, and responded, "I do it every day" and had been doing so for 20 years. Thus, the jury was aware that Vera made her entries close in time to the events the entries described. The exact time of day when Vera made her entries would not have made it more probable that the entries were accurate. Appellant does not proffer an explanation on appeal as to the relevancy of Vera's dinner menu and we cannot imagine what that might be. The trial court did not abuse its discretion in sustaining the objections. For these same reasons, there was no prejudice to appellant from the lack of such detailed time information.
C. Exclusion of the diary was harmless.
Assuming the trial court erred in excluding the diary without finding willful misconduct or addressing the unavailability of lesser sanctions and prejudice, we see no prejudice to defendant from the exclusion of the diary.
We see no reasonable probability appellant would have received a more favorable outcome if the diary had been admitted. (People v. Buenrostro (2018) 6 Cal.5th 367, 399 [Under People v. Watson (1956) 46 Cal.2d 818 (Watson), the Watson standard of harmless error applies to claim that trial court erroneously excluded portion of witness testimony].) The trial court did not exclude all evidence related to the diary. Vera was able to testify about the events recorded in the diary, and to explain that she had refreshed her recollection of those events by referring to the diary. The diary itself was created by Vera, and so the diary's "credibility" was intertwined with the credibility of Vera herself. If the jury believed Vera's testimony, the actual diary was superfluous. If the jury did not find Vera to be a credible witness, there was no reason for the jury to give any weight to a document created and maintained solely by her.
Further, we question the overall significance of Vera's testimony to appellant's defense. She confirmed Miller picked up Chuck Parcell on February 7, 2017, but this was offset by her testimony, refreshed by her diary entry, that the men left her house at about noon. Miller testified he drove straight to appellant's house after picking up Chuck Parcell and surveillance video showed the men arriving at appellant's house at about 1:30 p.m. The drive time between the two homes was about 10 minutes, indicating they must have left almost an hour later than Vera indicated, the surveillance video time on appellant's system was incorrect, or they made a substantial unreported detour before picking up appellant.
D. Appellant's federal claims fail.
Short of total preclusion of a defendant's ability to present a mitigating case to the trier of fact, no due process violation occurs where the trial court erroneously rejects only some evidence concerning the defense. (People v. Thornton (2007) 41 Cal.4th 391, 452-453.) Thus, when the trial court rejects some but not all of defense evidence, "the error is nonconstitutional and is analyzed for prejudice under Watson, supra, 46 Cal.2d 818—i.e., the judgment should be reversed only if it is reasonably probable that defendant would have obtained a more favorable result absent the error. (People v. Bradford (1997) 15 Cal.4th 1229, 1325 [65 Cal.Rptr.2d 145, 939 P.2d 259].)" (People v. Garcia (2008) 160 Cal.App.4th 124, 133.)
Here the trial court rejected only part of the evidence related to Vera's diary, and we have found that exclusion of the diary itself was harmless under Watson. Thus, appellant's federal constitutional claims fail. III. There Is No Cumulative Error .
Appellant contends the cumulative effect of the errors rendered his trial fundamentally unfair. We have found only one possible error, and found it to be nonprejudicial. There is nothing to cumulate. (See People v. Avila (2006) 38 Cal.4th 491, 608, 615.) IV. The Trial Court Did Not Abuse Its Discretion In Denying Appellant's Motion To Strike His Prior Conviction .
Appellant contends the trial court abused its discretion in denying his motion to strike his 2008 conviction for burglary, a prior "strike" under the three strikes sentencing law.
A court considering whether dismissal of a strike is in "furtherance of justice" should be informed by generally applicable sentencing principles relating to matters such as a defendant's background, character and prospects. (People v. Williams (1998) 17 Cal.4th 148, 160-161.)
Rulings on motions to strike prior convictions are reviewed under the deferential abuse of discretion standard. Under that standard a defendant who seeks reversal must demonstrate that the trial court's decision was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling. (People v. Carmony (2004) 33 Cal.4th 367, 373.)
Here, the trial court considered potentially positive facts: (1) appellant had loving parents who cared for him; (2) appellant had employable skills; (3) appellant used no physical violence or menace during the burglary; and (4) appellant successfully completed parole for his 2008 conviction. Notwithstanding the first three factors, the trial court considered only successful completion of parole as a potential mitigating factor.
We see no abuse of discretion in the trial court's view that the firs three factors were not mitigating circumstances. Appellant had loving and supportive parents and employable skills, yet still committed a residential burglary. Appellant fled immediately upon seeing the housekeeper; it is reasonable to conclude that he may have done so out of a desire to avoid arrest, and not because he intended to avoid harming the housekeeper. In this light, defendant's choice not to confront the housekeeper need not be viewed as a mitigating circumstance. (See, e.g., People v. Regalado (1980) 108 Cal.App.3d 531, 540-541 [lack of physical violence is not a mitigating factor where the record fails to show that burglar's departure upon the return of the victim was anything other than an attempt to escape].)
The trial court found appellant's lengthy criminal record an aggravating factor, describing him as a "committed" burglar and a danger to society. Although appellant suffered no convictions between his 2013 discharge from parole and the current offense, the court correctly noted his prior prison sentence for burglary did not deter him from committing a second burglary. The court connected appellant's prior criminal record with his drug problem. The court noted appellant had had at least one prior opportunity for drug treatment in 2002, after which in 2008 he suffered at least one conviction for possession of a controlled substance. (See People v. Reyes (1987) 195 Cal.App.3d 957, 963 [where defendant has failed to deal with substance abuse problem despite opportunities to do so and he continues in criminal conduct to support his pattern of substance abuse, an aggravated or upper term is appropriate]; see also People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.)
The trial court found appellant's successful completion of parole was outweighed by his persistent criminal behavior. The trial court's comments indicate it properly considered the nature and circumstances of appellant's current and prior convictions and the particulars of his background, character and prospects, and reached an impartial decision. (People v. Williams, supra, (1998) 17 Cal.4th at pp. 161-164.) The trial court did not abuse its discretion in refusing to strike the prior strike. V. The Trial Court's Comments Indicate Remand Is Not Warranted Under Senate Bill No . 1393.
During the pendency of this appeal, Senate Bill No. 1393 (2017-2018 Reg. Sess.) became effective. As relevant here, Senate Bill No.1393 amended provisions of Penal Code section 667 and section 1385, granting discretion to trial courts to strike a prior serious felony conviction in connection with imposition of the five-year enhancement set forth in section 667, subdivision (a)(1). (Stats. 2018, ch. 1013, § 1, § 2.) At the time appellant was sentenced, imposition of the enhancement was mandatory. Appellant is entitled to the benefit of the amendatory provisions. (In re Estrada (1965) 63 Cal.2d 740, 744-745.)
Remand is required "unless the record reveals a clear indication of how the court would have exercised its discretion." (People v. McDaniels (2018) 22 Cal.App.5th 420, 426.) Here, resentencing is not warranted because the trial court, by refusing to exercise its discretion to dismiss the strike, plainly showed it would not have stricken the prior serious felony if it had discretion to do so. If the trial court had stricken the prior conviction under the three strikes law, appellant's sentence would have been 11 years instead of 17. The trial court found no reason to strike the prior conviction. The court viewed a lengthy sentence as necessary to protect society, stating "I think he's a danger in the sense that if we were to release him into society, I fear he would go back to committing more burglaries." The court described appellant as "a danger to society." Based on the court's refusal to exercise its discretion to dismiss the strike, we conclude there is no possibility the trial court would strike the prior serious felony conviction enhancement if we remand. (See People v. Jones (2019) 32 Cal.App.5th 267, 273 [trial court need not have expressly stated it would not strike the enhancement if it had discretion to do so; court of appeal may review that trial court's statements and sentencing decisions to infer what its intent would have been].) VI. Appellant Has Forfeited His Dueñas Claim.
Appellant, relying on People v. Dueñas, supra, 30 Cal.App.5th 1157, contends the court's imposition of a $40 court operations assessment (§1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), and a $300 restitution fine (§ 1202.4, subd. (b)) without a finding of his ability to pay violated his due process rights. Appellant did not raise this objection in the trial court and has therefore forfeited the contention on appeal. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155 (Frandsen); accord, People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1032-1033; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464; Appellant urges us to reject Frandsen and find the contention has not been forfeited, citing People v. Castellano (2019) 33 Cal.App.5th 485, 489. We believe Frandsen is the better reasoned decision and conclude there is no basis for excusing appellant's forfeiture on this issue.
DISPOSITION
We affirm the judgment of conviction.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J. We concur:
GRIMES, Acting P. J.
WILEY, J.