IN RE: DERRICK B., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Derrick B., Defendant and Appellant.
Appellant Derrick B. challenges two aspects of the dispositional order that was entered after he admitted the allegations contained in a juvenile court petition. In the published portion of this opinion, we address defendant's challenge to the validity of the order that he register as a sexual offender pursuant to Penal Code section 290 when he is released from the California Youth Authority (CYA).1 In the unpublished portion of this opinion, we find that defendant's precommitment custody credits were miscalculated.
Appellant was born in 1985.
On or about July 15, 1999, appellant sexually assaulted a 10-year-old girl while he was living with her family. He “approached the victim while she was asleep on the couch and touch[ed] her chest, buttocks and vaginal area underneath her under garments.” On August 19, 1999, a petition was filed alleging that appellant had violated section 288, subdivision (a). Defendant subsequently admitted violating section 243.4, subdivision (a) (the sexual battery offense). He was adjudicated a ward of the court, placed on probation, committed to a group home, and ordered to attend a sex offender treatment program and a substance abuse treatment program.
On November 16, 1999, appellant's commitment to the group home was terminated. On December 8, 1999, appellant's commitment to a second group home was terminated. On May 11, 2002, appellant ran away from a third group home. On May 16, 2002, his probation was revoked.
On June 4, 2002, appellant was arrested for possessing a billy club. On June 6, 2002, a petition was filed alleging, inter alia, violation of section 12020, subdivision (a) (the weapons offense). This count was found true. Appellant was continued as a ward of the court, committed to the substance abuse unit for 180 days, and ordered to complete a sex offender treatment program.
Appellant was psychologically evaluated in June and July of 2002. The evaluator wrote that appellant had “disclosed six other [sexual molestation] victims to the counselors at his previous group home. However, reports indicate that [appellant] disclosed 14 [sexual molestation] victims, which [appellant] denied to the evaluator.” Appellant described physical and sexual abuse he had suffered when he was aged six and seven.
Appellant was released to his mother's custody in January 2003.
At a hearing on March 19, 2003, appellant “was warned by the Judge that any future problems would warrant a [CYA] commitment.”
On March 20, 2003, appellant assaulted Paul Jones and was arrested. On March 24, 2003, a petition was filed alleging violations of sections 245, subdivision (a)(1) and 243, subdivision (d) (the assault offense and the battery offense). The petition notified appellant “that any previously sustained petition can be used by the Court in aggregating the total amount of time the minor can be removed from the custody of [his] parents.”
On April 2, 2003, appellant admitted the assault and the battery offenses on the condition that they would be deemed misdemeanors. The court informed appellant that “If you do enter the admission as indicated, Derrick, ․ the maximum possible penalty is that you could be removed from the custody of your parent. You could be placed in a locked, confined setting, and that could be for a period of up to one year and four months on these charges. And that would be added to any time that you're facing ․ as a result of other charges having been found to be true․ I gather that it's approximately four years and four months.” When asked if he understood this advisement, appellant answered, “Yes, sir.”
A dispositional hearing was held on May 13, 2003. At the time of disposition, appellant had not completed a sex offender treatment program. The sexual battery offense was designated as the principal term and a four-year CYA commitment was imposed for this crime. The assault offense was designated as the second subordinate term and four months' commitment to CYA was imposed. The weapons offense was designated as the third subordinate term and an additional four months' commitment was imposed. A one-year term was imposed and stayed for the battery offense. All the terms were ordered to run consecutively. Appellant was ordered to register as a sexual offender when he is released from CYA. He was awarded 406 precommitment custody credits.
I. Sexual Offender Registration
Appellant argues that the juvenile court did not have the statutory authority to require him to register as a sex offender because sexual battery in violation of section 243.4, subdivision (a) is not included in the list of crimes contained in section 290, subdivision (d). The Attorney General acknowledges that sexual battery is not among the offenses listed in subdivision (d) of section 290, but asserts that the court had discretion to order registration pursuant to subdivision (a)(2)(E) of this section. Appellant responds that subdivision (a)(2)(E) of section 290 does not apply to juvenile wards. Thus, resolution of the question whether the registration order is authorized turns on the scope of this subdivision. We have concluded that subdivision (a)(2)(E) of section 290 confers discretion on all criminal courts, including those hearing juvenile delinquency matters, to order a person to register as a sex offender if the offense was committed for sexual gratification or if it was the result of a sexual compulsion.
At the outset, we mention that it has been determined “that the registration requirement imposed by section 290 does not constitute punishment for purposes of ex post facto analysis under the federal and California Constitutions [citations]; it neither alters the definition of any crime nor increases the punishment for criminal acts, the Legislature did not intend registration to constitute punishment, and it is not so punitive in nature and effect that it must be deemed punishment.” (People v. Allen (1999) 76 Cal.App.4th 999, 1003, 90 Cal.Rptr.2d 662; People v. Castellanos (1999) 21 Cal.4th 785, 788-799, 88 Cal.Rptr.2d 346, 982 P.2d 211.)
In 1985, the Legislature amended section 290 to add subdivision (d), which expressly deals with juvenile wards. (Stats.1985, ch. 1474, § 1, p. 5404.) Prior to this time, section 290 only referenced persons who had been convicted of specified sex crimes. (In re Bernardino S. (1992) 4 Cal.App.4th 613, 618, 5 Cal.Rptr.2d 746 (Bernardino ).) 2 Currently, subdivision (d)(1) provides that any person who is discharged from CYA after having been adjudicated a ward of the juvenile court “because of the commission or attempted commission of any offense described in paragraph (3) shall be subject to registration under the procedures of this section.” Paragraph (d)(3) contains a list of triggering offenses, broken into three subsections. (§ 290, subd. (d)(3)(A)-(C).) Although violation of subdivision (a) of section 288, the crime that was alleged in the 1999 petition, is listed in subdivision (d)(3)(C), violation of subdivision (a) of section 243.4, the crime which appellant admitted, is not listed in subdivision (d)(3)(A) through (d)(3)(C).
Subdivision (a)(2)(E) was added to section 290 as part of a group of amendments enacted in 1994. (Stats. 1994, ch. 865, § 1, No. 9 West's Cal. Legis. Service, p. 3673.) In its current form, this subdivision provides that “any court” may order “[a]ny person ․ to register pursuant to this section for any offense not included specifically in this section if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. The court shall state on the record the reasons for its findings and the reasons for requiring registration.” Prior to the addition of this subdivision, section 290 did not contain a provision conferring discretion on the courts to order registration as a sexual offender. The registration requirement was based exclusively on commission of certain enumerated crimes. (Assem. Com. on Pub. Safety, Bill Analysis of Assem. Bill No. 3513 (1993-1994 Reg. Sess.) as proposed [http://www.leginfo.ca.gov/pub/93-94/bill/asm/ab_3501-3550/ab_3513].)
Whether subdivision (a)(2)(E) of section 290 applies to juvenile wards is an issue of statutory interpretation.
“In the case of a statute adopted by the Legislature or the voters, we apply the following standard of review: ‘ “The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.] But ‘[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’ [Citations.] Thus, ‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ [Citation.] Finally, we do not construe statutes in isolation, but rather read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ [Citation.]” [Citation.] We must also consider “the object to be achieved and the evil to be prevented by the legislation. [Citations.]” ' ” (People v. Westbrook (2002) 100 Cal.App.4th 378, 382-383, 122 Cal.Rptr.2d 514.)
When determining the Legislature's intent, “ ‘[t]he court turns first to the words [of the statute] for the answer.’ ” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.) “ ‘[I]f the statutory language permits more than one reasonable interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.’ ” (In re Michael D. (2002) 100 Cal.App.4th 115, 121, 121 Cal.Rptr.2d 909.) The goal is to “ ‘ “ ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ ” ' ” (Ibid.) “To determine the meaning of a statute, we seek to discern the sense of its language, in full context, in light of its purpose.” (People v. Cooper (2002) 27 Cal.4th 38, 45, 115 Cal.Rptr.2d 219, 37 P.3d 403.) “[I]f a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)
As previously set forth, subdivision (a)(2)(E) of section 290 provides that “any court” may order “[a]ny person” to register if it finds “at the time of conviction or sentencing” that the offense was committed as the result of sexual compulsion or for purposes of sexual gratification.3 Appellant contends that this subdivision is inapplicable to him because minors technically are neither “convicted” nor “sentenced” in juvenile delinquency proceedings. The Attorney General simply assumes that subdivision (a)(2)(E) applies to juvenile delinquents. We believe that phrasing of section (a)(2)(E) is not unambiguous, and therefore we must attempt to discern the meaning that most closely promotes the general purpose of the statute, comports most closely with the apparent intent of the Legislature and leads to the more reasonable result. (In re Michael D., supra, 100 Cal.App.4th at p. 121, 121 Cal.Rptr.2d 909; Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299.)
We begin with the legislative history of the 1994 amendments to section 290. The stated purpose of this legislation was “to increase the penalties under the sex offender registration statute, and to broaden its scope and application.” (Sen. Floor, Bill Analysis of Assem. Bill No. 3513 (1993-1994 Reg. Sess) as amended Aug. 26, 1994 [http://www.leginfo.ca.gov/pub/93-94/bill/asm/ab_3501-3550/ab_3513].) As originally introduced in the Assembly, the proposed legislation provided, in relevant part, that “any court” had the discretion to order “any person ․ to register pursuant to this section for any offense not included specifically in this section.” (Legis. Counsel's Dig., Assem. Bill No. 3513 (1993-1994 Reg. Sess.) as amended Aug. 9, 1994 [http:// www.leginfo.ca.gov/pub/93-94/bill/asm/ab_3501-3550/ab_3513].) An early bill analysis stated that the proposed legislation “[a]uthorized a court to order a person to register for any offense not specifically included in the registration statute.” (Assem. Com. on Pub. Safety, Bill Analysis of Assem. Bill No. 3513 (1993-1994 Reg. Sess.) as proposed [http:// www.leginfo.ca.gov/pub/93-94/bill/asm/ab_3501-3550/ab_3513].) Later, when the legislation was being considered in the Senate, it was noted in another bill analysis that “as drafted this bill provides no limits whatsoever on the court's authority to require an offender to register as a sex offender.” (Sen. Com. on Judiciary, Bill Analysis of Assem. Bill No. 3513 (1993 1994 Reg. Sess) as amended June 2, 1994 [http://www.leginfo.ca.gov/pub/93-94/bill/asm/ab_3501-3550/ab_3513].) This bill analysis asked why courts should be granted this discretion and queried whether it should be required in the case of court-ordered registration that the triggering offense must be reasonably related to the sex offenses enumerated in section 290. (Ibid.) Thereafter, the proposed legislation was amended to “[c]larify that a court may order a person to register as a sex offender for any offense not referenced in the sex offender statute if the court finds at the time of conviction that the person committed the offense as a result of sexual compulsion or for the purpose of sexual gratification” and to “[r]equire a court who implements the above provision to ․ state on the record the reasons for its findings and the reasons for requiring registration.” (Assem. Conc. Sen. Amend., Bill Analysis of Assem. Bill No. 3513 (1993-1994 Reg. Sess.) as amended Aug. 26, 1994 [http:// www.leginfo.ca.gov/pub/93-94/bill/asm/ab_3501-3550/ab_3513].) It was this more restrictive version of the legislation that was enacted. (Stats.1994, ch. 865, § 1, No. 9 West's Cal. Legis. Service, p. 3673.)
It is clear from the history of the 1994 amendments to section 290 that the Legislature's intent when it added subdivision (a)(2)(E) was to enhance public safety. It states that the importance of registering sex offenders is best illustrated by their high recidivism rate. (Sen. Floor, Bill Analysis of Assem. Bill No. 3513 (1993-1994 Reg. Sess.) as amended Aug. 26, 1994 [http:// www.leginfo.ca.gov/pub/93-94/bill/asm/ab_3501-3550/ab_3513].) The legislators were concerned that some sex offenders who should register were slipping through gaps in enumerated lists of offenses. Granting courts discretion to require registration enhances public safety by closing this loophole. The legislation partially “shift[s the] responsibility” of ensuring that sex offenders register from the Legislature to the courts. (Sen. Com. on Judiciary, Bill Analysis of Assem. Bill No. 3513 (1993-1994 Reg. Sess.) as amended June 2, 1994 [http:// www.leginfo.ca.gov/pub/93-94/bill/asm/ab_3501-3550/ab_3513].) There is no indication in the history of this legislation that the narrowing of the bill's broad language prior to its enactment was intended to limit its reach to adults. Rather, this narrowing was an attempt to provide courts with guidance concerning the proper exercise of discretion.
The Legislature's intent prevails over the letter of the law and, if possible, the letter will be read to conform to the spirit of the act. (People v. Pieters (1991) 52 Cal.3d 894, 899, 276 Cal.Rptr. 918, 802 P.2d 420.) When the Legislature added subdivision (a)(2)(E) to section 290, it intended to vest ultimate responsibility in the judicial branch to ensure that sex offenders were ordered to register. The Legislature no longer wanted exclusive control over the decision when registration should be required. Construing the phrase “conviction or sentence” in the literal manner urged by appellant to exclude juvenile sex offenders from the reach of the subdivision would be contrary to the intent of the legislators and would frustrate the public safety purpose of the enactment. Such a construction would prevent courts hearing juvenile delinquency matters from ordering registration in cases such as the one before us, where the minor clearly committed a serious sexual offense but the crime which the juvenile admitted is not included in the lists of the enumerated crimes. In essence, appellant and other similarly situated individuals would slip through a crack in the statute-exactly the evil that the Legislature intended to remedy when it enacted subdivision (a)(2)(E). Additionally, interpreting the phrase “conviction and sentencing” to exclude juvenile criminal proceedings would render the phrases “any court” and “any person” that are contained in subdivision (a)(2)(E) virtually meaningless. This would contravene the established rule that a statute should not be interpreted so that portions of it are rendered nugatory. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735, 248 Cal.Rptr. 115, 755 P.2d 299.) Therefore, we believe that in order to effectuate the intent of the Legislature when it granted “any court” discretion to order “any person” to register if the offense was committed for purpose of sexual gratification or as a result of a sexual compulsion, the words “conviction or sentencing” in subdivision (a)(2)(E) should be understood as relating to specific events, i.e., judgment and pronouncement of punishment or disposition. Not only does this interpretation lead to the more reasonable result, it harmonizes the subdivision's language and it furthers the public safety purpose for which the legislation was enacted.
We are aware that technically, “[a] juvenile court declaration of wardship is not a criminal conviction [citation], and a dispositional order following such declaration is not a sentence.” (In re Tony S. (1978) 87 Cal.App.3d 429, 432-433, 151 Cal.Rptr. 84; see also Welf. & Inst.Code, § 203.) However, “the United States Supreme Court has repeatedly recognized that despite its designation as a civil proceeding, a juvenile delinquency matter is akin to a criminal prosecution; moreover, to insist otherwise is to adhere to ‘sentiment [or] folklore,’ ‘mere verbiage’ and ‘cliche.’ ” (In re Kevin S. (2003) 113 Cal.App.4th 97, 109, 6 Cal.Rptr.3d 178 quoting In re Gault (1967) 387 U.S. 1, 21-22, 29-30, 87 S.Ct. 1428, 18 L.Ed.2d 527.) Our Supreme Court has recognized this reality when assessing the applicability of penal statutes to juvenile delinquency proceedings. In re Jovan B. (1993) 6 Cal.4th 801, 25 Cal.Rptr.2d 428, 863 P.2d 673 considered the question whether section 12022.1 (felony committed while on bail or own recognizance) applies in juvenile proceedings. Our high court rejected the argument that by its plain terms this section did not apply because the statute speaks in terms of informations, indictments, complaints, preliminary hearings, convictions and bail, all of which are foreign to juvenile proceedings. (Id. at p. 811, 25 Cal.Rptr.2d 428, 863 P.2d 673.) The court concluded that use of adult procedural terms “does not evidence an intent manifestly incompatible with its application to juvenile offenses.” (Id. at p. 813, 25 Cal.Rptr.2d 428, 863 P.2d 673.) The term “conviction” does not have a “special technical significance” that evidences an intent to aim the statute primarily at adults. (Id. at p. 814, 25 Cal.Rptr.2d 428, 863 P.2d 673.) The court found that the public safety purpose of section 12022.1 applied “equally to juvenile and adult offenses.” (Id. at p. 813, 25 Cal.Rptr.2d 428, 863 P.2d 673.) The high court noted that “Court of Appeal decisions have assumed that the enhancements for drive-by shootings with actual or intentional death or GBI [citation], and for personal use of a firearm [citation], apply in juvenile cases” despite the fact that these enhancements provide that they are to be imposed upon “conviction” of the underlying felony. (Id. at p. 813, fn. 7, 25 Cal.Rptr.2d 428, 863 P.2d 673.)
Cases holding that a juvenile adjudication is not considered to be a criminal conviction for purposes of certain sentencing statutes in subsequent adult proceedings (see, e.g., People v. Westbrook, supra, 100 Cal.App.4th at p. 384, 122 Cal.Rptr.2d 514 and cases cited therein) are distinguishable. As mentioned previously, registration pursuant to section 290 is not additional punishment (People v. Castellanos, supra, 21 Cal.4th at p. 796, 88 Cal.Rptr.2d 346, 982 P.2d 211). Therefore, a registration requirement is not analogous to a sentence enhancement, an alternative sentencing scheme or a disqualifying factor.
Finally, we mention that many constitutional protections associated with criminal prosecutions have been extended to juveniles alleged to be delinquents, including: notice of charges, right to confrontation and cross-examination, the privilege against self-incrimination, the standard of proof beyond a reasonable doubt, double jeopardy and, most recently, the right to counsel on appeal. (In re Kevin S., supra, 113 Cal.App.4th at pp. 118-119, 6 Cal.Rptr.3d 178.) A prior juvenile adjudication may be a strike despite the absence of a right to jury trial in delinquency proceedings. (People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 834, 7 Cal.Rptr.3d 74.) Since appellant's constitutional rights and protections were respected during the delinquency proceedings, imposition of a continuing registration requirement is not constitutionally invalid either on its face or as applied.
For all these reasons, we conclude that the juvenile court possessed discretion pursuant to subdivision (a)(2)(E) of section 290 to include a registration requirement in the dispositional order.
Appellant also argues that the registration requirement cannot stand because the court did not expressly find that the sexual battery offense was caused by a sexual compulsion or committed for appellant's sexual gratification. Appellant contends that the court's remarks that the sexual battery offense was “a very serious sex offense,” that appellant had admitted committing “the very bad act involving the young girl,” and that appellant had failed to complete a sexual offender treatment program are inadequate.
This challenge to the sufficiency of the court's statement of reasons was waived because appellant did not object to the registration requirement on this ground, or any other, during the dispositional hearing.4 The waiver rule applies in juvenile delinquency proceedings. (In re Justin S. (2001) 93 Cal.App.4th 811, 814, 113 Cal.Rptr.2d 466.) Appellant was apprised of the registration requirement at the dispositional hearing. He had an opportunity to argue against the requirement and to ask the court to more fully articulate its reasoning. Having failed to do so, he may not now claim for the first time that the court's statement of reasons was insufficient. (People v. Bautista (1998) 63 Cal.App.4th 865, 868-871, 74 Cal.Rptr.2d 370; People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061, 120 Cal.Rptr.2d 687; People v. Carranza (1996) 51 Cal.App.4th 528, 536, 59 Cal.Rptr.2d 134; In re Justin S., supra, 93 Cal.App.4th at p. 814, 113 Cal.Rptr.2d 466; In re Josue S. (1999) 72 Cal.App.4th 168, 172-173, 84 Cal.Rptr.2d 796.)
In any event, the record in this case supports an implied finding that the sexual battery offense was committed for appellant's sexual gratification or because of a sexual compulsion. Therefore, the registration order is not fatally compromised because the court failed to use the specific statutory language. (Cf. People v. Butler (2003) 31 Cal.4th 1119, 1127, 6 Cal.Rptr.3d 730, 79 P.3d 1036 [challenge to sufficiency of evidence supporting an order requiring AID's testing is cognizable despite lack of contemporaneous objection; if evidence is sufficient, required finding will be implied].) Moreover, because the evidence supports the registration requirement, defendant was not prejudiced by his attorney's failure to interpose timely objection. It is not reasonably likely that such an objection would have been successful. Accordingly, we reject the ineffective assistance claim appellant raised in his supplemental brief. (In re Jackson (1992) 3 Cal.4th 578, 604, 11 Cal.Rptr.2d 531, 835 P.2d 371 [when ineffective assistance claim can be resolved by lack of prejudice, court need not determine whether representation was deficient].)
In closing, we reject appellant's claim the registration requirement cannot stand because he was not initially committed to CYA for the sexual battery offense. The requirement that the ward be committed to CYA is contained in subdivision (d) of section 290. As discussed above, it is subdivision (a)(2)(E) that is applicable. This subdivision does not require a CYA or prison commitment. Moreover, the argument is unpersuasive. It is established that the juvenile court may consider prior offenses to aggregate the maximum term of commitment if notice has been given to the juvenile so that he can rebut any derogatory material in his record. (In re Jovan B., supra, 6 Cal.4th at p. 810, 25 Cal.Rptr.2d 428, 863 P.2d 673; In re Edwardo L. (1989) 216 Cal.App.3d 470, 478-479, 265 Cal.Rptr. 188.) The court commits a ward to CYA and sets his term of commitment based on his entire record-not just the most recent offense. Here, the record affirmatively demonstrates that appellant was committed to CYA because he committed a sex offense. The juvenile court designated the sexual battery offense as the primary term. Appellant received written notification that the court may aggregate his period of confinement based on his prior offenses in the 2003 petition, and he was verbally notified of this fact when he admitted the assault and battery offenses. Although appellant initially was provided with the opportunity for a less onerous disposition, he did not take advantage of this chance for redemption. Instead, he failed to complete sex offender treatment and he committed more crimes. That appellant had been given a chance to reform prior to the CYA commitment does not negate the indisputable fact that he is a sex offender who has been committed to CYA.
II. Custody Credits **
The dispositional order is modified to reflect 543 days of precommitment credit and the juvenile court is directed to amend its records accordingly. As so modified, the judgment is affirmed.
1. Unless otherwise specified, all statutory references are to the Penal Code.
2. We note that appellant's reliance on Bernardino, supra, 4 Cal.App.4th 613, 5 Cal.Rptr.2d 746 in support of his interpretation of section 290 is misplaced because this case was decided in 1992, prior to the addition of subdivision (a)(2)(E) to section 290. This section did not contain a provision granting courts discretion to order registration when Bernardino was decided. (Assem. Com. on Pub. Safety, Bill Analysis of Assem. Bill No. 3513 (1993-1994 Reg. Sess.) as proposed [http://www.legi nfo.ca.gov/pub/93-94/bill/asm/ab_3501-3550/ab_3513].)
3. The amendments to section 290 that became effective in 2003 did not affect subdivision (a)(2)(E). (Stats.2003, ch. 540, § 1, No. 9 West's Cal. Legis. Service, p. 3326; Stats.2003, ch. 634, § 1.3, No. 11 West's Cal. Legis. Service, p. 3824.)
4. Pursuant to Government Code section 68081, the parties filed supplemental briefing addressing the waiver question. Therein, appellant conceded that timely objection was required to preserve this point for review.
FOOTNOTE. See footnote *, ante.
WE CONCUR: VARTABEDIAN, Acting P.J., and CORNELL, J.