Opinion
D075254
05-20-2020
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO BERNEZ, Defendant and Appellant.
Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE379713) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Marianne Harguindeguy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Francisco Bernez took a Coca-Cola can from a Rite Aid store. When confronted by security officers outside the store, he threatened them with a knife. A short while later, he was arrested by sheriff's deputies after ignoring their commands to stop. Based on these events, a jury convicted Bernez of robbery and misdemeanor resisting arrest. (Pen. Code, §§ 211, 148, subd. (a).) Bernez admitted allegations of a strike and a serious felony prior. Before trial, Bernez pled guilty to a shoplifting charge involving a separate event.
All unspecified statutory references are to the Penal Code.
The court sentenced Bernez to nine years, consisting of four years for the robbery (two-year low term doubled) plus a consecutive five years for the serious felony enhancement. The court imposed concurrent sentences on the other counts. The court assessed several fines and fees, including a $2,000 restitution fine (§ 1202.4, subd. (b)).
Bernez contends: (1) the court erred in failing to sua sponte give a pinpoint instruction relevant to robbery; (2) the court abused its discretion in refusing to permit his counsel to conduct a demonstration with a Coca-Cola can; (3) his counsel was ineffective for failing to object to evidence relating to a beer can later found by a sheriff's deputy; and (4) the court erred in imposing fines and fees without an express ability-to-pay finding. We reject these contentions and affirm the judgment.
FACTUAL SUMMARY
At about 11:35 a.m., Bernez entered a Rite Aid store, dropped his backpack near the entrance (apparently pursuant to written directions), and went to an area containing beverages for sale. He selected a 16-ounce Coca-Cola can. At some point while still in the store, he put the can in his left front pants pocket.
Two loss prevention officers were in the back of the store watching surveillance cameras, and saw Bernez put the can in his pocket. One of the officers approached Bernez and told him to pay for the beverage. Bernez said, " 'you can't touch me,' " and walked quickly toward the store exit. The security officer stood in front of Bernez, but Bernez walked past him, grabbed his backpack, and left the store.
The two loss prevention officers followed Bernez outside as he turned right to walk along the front of the store. They continued to follow him as he again turned right at the store corner. Bernez then turned around and held up a knife, and walked toward the loss prevention officers. When one officer pulled out his phone to call 911, Bernez turned around and ran away. He ran or walked quickly on a street (Safford Avenue) to another nearby shopping center. The loss prevention officers saw Bernez walk or run along Safford Avenue, but did not closely follow him.
Two sheriff's deputies responded and found Bernez at the nearby shopping center. Bernez ignored commands to stop, and one of the deputies pulled out his taser and shot Bernez in the back. When the deputies searched Bernez, they did not find the cola can, knife, or backpack. Several other sheriff's deputies searched the path that Bernez took, but did not find any of these objects. One of the deputies testified she found a can of King Cobra beer during this search. But the Rite Aid loss prevention officers confirmed at trial that the stolen item was a Coca-Cola can and that the store does not carry King Cobra cans. They also stated they had searched the Rite Aid store and the nearby outside area and did not find the Coca-Cola can, knife, or backpack.
At trial, the prosecutor's main theory on the robbery charge was that Bernez took the Coca-Cola can without paying for it, threatened the security officers with his knife to aid in his escape, and then abandoned the can and knife as he ran north on Safford Avenue.
Bernez did not testify or call any of his own witnesses. With respect to the robbery charge, his counsel argued the evidence did not support that he left the store with the Coke can, emphasizing that the prosecution did not produce the surveillance video of the beverage area where Bernez purportedly took the can; the fact the evidence did not clearly show any bulge in Bernez's pocket; and the inconsistencies in the testimony of the two security officers.
The jury found the prosecution proved each of the charged offenses.
DISCUSSION
I. Claimed Pinpoint Instructional Error
Bernez contends the court erred by failing to sua sponte give a pinpoint instruction that a robbery is not complete if the stolen property is abandoned before the defendant uses force or fear. (People v. Estes (1983) 147 Cal.App.3d 23 (Estes).)
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) The taking element of robbery has two elements: (1) gaining possession of the victim's property; and (2) asporting or carrying away the property. (People v. Cooper (1991) 53 Cal.3d 1158, 1165 (Cooper).) The asportation of the property and the crime of robbery continue "as long as the loot is being carried away to a place of temporary safety." (Ibid.; accord, People v. Anderson (2011) 51 Cal.4th 989, 994 (Anderson); Estes, supra, 147 Cal.App.3d at pp. 27-28.)
Under these principles, a burglary or theft "becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot." (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8; accord, Miller v. Superior Court (2004) 115 Cal.App.4th 216, 222; Estes, supra, 147 Cal.App.3d at pp. 27-28.) "[T]he crime of robbery occurs when property is forcefully retained in the victim's presence . . . ." (People v. Gomez (2008) 43 Cal.4th 249, 264.) Robbery thus includes the use of force or fear to prevent a business's security guard from retaking stolen property. (See Estes, supra, at pp. 27-28.) This latter theory of robbery is known as an Estes robbery.
The court instructed the jury on the elements of robbery using CALCRIM No. 1600. The fifth and sixth elements pertain to when the defendant must use force or fear. On these elements, the court informed the jury the prosecution must prove: "[t]he defendant used force or fear to take the property or prevent the person from resisting" and "[w]hen the defendant used force or fear, he intended to deprive the owner of the property permanently or to remove the property from the owner's possession for an extended period of time so that the owner would be deprived of a major portion of the value or enjoyment of the property." (Italics added.) In the last sentence of the instruction, the court also told the jury that "[t]he application of force or fear may be used when taking the property or when carrying it away." (Italics added.)
As read to the jury, the instruction stated: "Mr. Bernez is charged in Count 1 with Robbery . . . . To prove the defendant guilty of this crime, the People have to prove the following: One, the defendant took property that was not his own. [¶] Two, the property was in the possession of another person. [¶] Three, the property was taken from the other person or their immediate presence. [¶] Four, the property was taken against that person's will. [¶] Five, the defendant used force or fear to take the property or prevent the person from resisting. [¶] And six, when the defendant used force or fear, he intended to deprive the owner of the property permanently or to remove the property from the owner's possession for an extended period of time so that the owner would be deprived of a major portion of the value or enjoyment of the property. [¶] The defendant's intent to take the property must have been formed before or during the time that force or fear was used. If the defendant did not form this required intent until after using the force or fear, then the defendant does not commit a robbery. [¶] A person takes something when he or she gains possession of it and moves it some distance. The distance moved may be very short. [¶] The property taken can be of any value, however slight. [¶] Two or more people may possess property at the same time. [¶] A person does not actually have to hold or touch something to possess it. It's enough if that person has control over it or the right to control it, either personally or through another person. A store or business employee who is on duty has possession of the store or business owner's property. [¶] Fear, as used here, means fear of injury to the person himself . . . or [to his or her] property. Property is within a person's immediate presence if it is sufficiently within his or her physical control so that he or she can keep possession of it if not prevented by force or fear. An act is done against a person's will if that person does not consent to the act. In order to consent, a person must act freely, voluntarily, and know the nature of the act. The application of force or fear may be used when taking the property or when carrying it away."
This instruction correctly informed the jury of the elements of robbery, including an Estes robbery. Bernez does not dispute this. But he argues the court erred in failing to sua sponte also give a pinpoint instruction about the consequences of Bernez's abandoning the property between the time he left the store with the Coca-Cola can and when he pulled the knife. He argues the court should have instructed the jury that a robbery is "not complete if the property is abandoned before the use of force or fear."
This argument is forfeited. The court has no sua sponte obligation to give pinpoint instructions (Anderson, supra, 51 Cal.4th at pp. 996-997), nor does it have a duty to provide clarifying or amplifying instructions when the given instructions correctly state the law (see People v. Sanders (1995) 11 Cal.4th 475, 533-534). We note that Bernez's counsel likely did not request this pinpoint instruction because it would have been inconsistent with his main theory that Bernez never took the Coca-Cola can from the store.
Further, even if Bernez did not forfeit the claim, there was no factual basis to give this pinpoint instruction. The court has an obligation to give an instruction if it is supported by substantial evidence. (People v. Young (2005) 34 Cal.4th 1149, 1200.) "Evidence is 'substantial' only if a reasonable jury could find it persuasive. [Citation.] . . . The trial court need not give instructions based solely on conjecture and speculation." (Ibid.)
The undisputed evidence established that if Bernez took the Coca-Cola can from the store, he would have had it in his possession when he turned around and pointed the knife at the loss prevention officers. According to these officers' testimony, they watched him leave the store, turn right to walk along the front of the store, and then turn right at the store corner. As soon as he turned this corner, Bernez turned around and pulled out the knife. When one of the officers called 911, Bernez ran along the side of the Rite Aid store towards the back of the store and turned the corner, where the security officers briefly lost sight of him. They saw him run or walk quickly along Safford Avenue, but did not follow closely. Soon after, they searched the Rite Aid and the area outside the store for the can (and the knife and backpack), but never located these items.
On this record, it is not plausible that Bernez abandoned the Coca-Cola can in the few seconds between the time he left the store and when he pulled the knife. The officers followed him as he left the store and saw him turn the corner where he pulled the knife and aimed it toward the officers. If Bernez had abandoned the soda can as he was turning the corner, the security officers would have seen this. The fact that the officers searched for, but never found, the soda can in that same area bolsters this conclusion.
Bernez argues that the fact the can was not in his possession when he was apprehended, and that the law enforcement officers never found the soda can in the path where he walked, means he could have abandoned the can outside the store before he pulled the knife. This is not a logical argument. Although Bernez disposed of the items before he was apprehended, there is no reasonable factual basis to conclude that he abandoned them before he pulled the knife. The inability of the deputies and officers to find any of the items (the Coke can, the backpack, and the knife) suggests at most that Bernez must have thrown these items in a place that was not visible as he ran or walked quickly from the Rite Aid store to the next shopping center, when the officers had lost sight of him or saw him only from a distance.
In any event, there was no prejudice because the prosecutor correctly explained to the jury the concept of an Estes robbery. During her argument, the prosecutor said: "The application of force of fear can apply when the property is initially taken, so when he initially takes it from the beverage cooler, or it can occur as he's trying to carry it away. So he is still trying to carry it away at the point in time that he is being confronted by loss prevention and at the time that he pulls a knife. He is still attempting to carry that property away." (Italics added.)
Based on the jury instructions and the prosecutor's argument, the jury would have understood that the prosecution proved the force and fear element of the robbery only if Bernez still had the stolen can in his possession when he pointed the knife at the officers.
II. Defense Counsel's Requested Demonstration
Bernez contends the court erred in precluding his counsel from putting a 16-ounce can in a pocket of "similar clothes" to support an argument that Bernez could not have taken the cola can. In asserting this argument, Bernez misconstrues the court's ruling. Based on an accurate reading of the record, the court's ruling was sound and within the court's discretionary authority.
A. Factual Background
In motion papers filed before trial, the prosecutor moved to prevent defense counsel from putting a 16-ounce soda can in his own pocket, a demonstration defense counsel had performed at the preliminary hearing. The prosecutor argued the demonstration was irrelevant and should be excluded under Evidence Code section 352.
At the in limine hearing, the court initially indicated its intent to grant the motion, but permitted defense counsel to argue his position. Defense counsel then said the store's surveillance videotapes did not clearly depict the soda in Bernez's pocket, and that during his closing argument he would like to put a 16-ounce soda can in his pocket to show the Coca-Cola can would have been visible on the tapes if Bernez had put the can in his pocket. Defense counsel said: "[T]he only thing I am asking to present in this case, is a demonstrat[ion] that if [Bernez] had a can of Coke, it would have shown. And to stand there in front of the jury and parade it around, I think [my client] is entitled to have me do that."
The court responded that it agreed with the prosecutor to the extent she was arguing it would be improper for defense counsel to place a soda can in his own pants pocket because such demonstration is "not illustrative of this particular case." But the court told defense counsel that if he has "similar pants" to defendant's pants, "you can put the can in, you can ask [the loss prevention officers] whether or not this is what they saw. [These officers] were the ones [who] were out there. . . [¶] The photos don't help us too much other than showing the type of pants. So if you get . . . a pair of pants similar, . . . you can do it." (Italics added.)
The prosecutor then reasserted her objections to any demonstration, arguing (1) the reason the Coca-Cola can could not be seen in the surveillance video was the poor quality of the video; (2) it is unlikely defense counsel could obtain the same or similar type of pants; and (3) a demonstration would likely "lead to more confusion of the issues than to any sort of enlightenment as to the facts of this case." The court overruled these objections, and said the "ruling remains as indicated."
At trial, both loss prevention officers testified they saw Bernez put the Coke can in his pocket, and one of the officers said he saw a bulge in Bernez's pocket when he left the store. The latter testimony was corroborated by a photograph showing the security officer pointing to Bernez's pocket right outside the store. When conducting cross-examination, Bernez's counsel never showed either loss prevention officer a pair of pants similar to the ones worn by Bernez with an inquiry about whether the can would fit into the pants or what the pants would look like with the can in the pocket.
Shortly before closing arguments and outside the jury's presence, the prosecutor identified the 16-ounce Coca-Cola can admitted into evidence, and asked "that there not be any demonstration" during closing arguments, noting "there wasn't any demonstration with the witness in court." The court responded: "I've already said I'm not going to let [defense counsel] put the can of Coke in his pocket, but he certainly can hold it up, hold it next to [his] body and say 'this is it.' Just don't put it in your pocket." (Italics added.) Defense counsel responded: "I'm not going to put it in my pocket. I'll do everything else with it, though." (Italics added.) The court replied, "That's okay."
During closing arguments, defense counsel argued it was unlikely Bernez put such a "large can of Coke" in his pocket, particularly because the object did not appear on any of the surveillance videos shown to the jury. Counsel asserted: "[S]omething that big is going to make an impression in those pants that is unmistakable. [¶] This isn't a mini bottle of beer. This isn't one of those little, tiny eight-ounce cans of Coke. It's not even the normal 12-ounce can of Coke. It's a 16-ounce can of Coke."
B. Legal Principles
A trial court's decision to admit or exclude demonstrative evidence is reviewed for abuse of discretion. (People v. Caro (2019) 7 Cal.5th 463, 508.) We must affirm unless the court acted in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
" 'Evidence of [a] demonstration engaged in to test the truth of testimony that a certain thing occurred is admissible only where (1) the demonstration is relevant, (2) its conditions and those existing at the time of the alleged occurrence are shown to be substantially similar and (3) the evidence will not consume undue time or confuse or mislead the jury. [Citation.] The party offering the evidence bears the burden of showing that the foundational requirements have been satisfied." (People v. Rivera (2011) 201 Cal.App.4th 353, 363 (Rivera).)
C. Analysis
Bernez contends the court erred because it did not permit his counsel to put the can in a pocket with similar clothing. However, the court said it would allow defense counsel to show the loss prevention officers a similar pair of pants and ask about the appearance of the can in the pocket of those pants. For reasons that do not appear on the record, defense counsel decided not to conduct this demonstration. But the record shows the court did not preclude counsel from doing so.
The court ruled that a demonstration would be relevant only if counsel used a similar type of pants to show what the pocket would look like with a 16-ounce Coca-Cola can. We agree. There would be no relevancy to any type of demonstration unless the pants were substantially similar. (See People v. Turner (1994) 8 Cal.4th 137, 198; Rivera, supra, 201 Cal.App.4th at p. 363; People v. Pedroza (2007) 147 Cal.App.4th 784, 795.)
Further, any error was harmless. There is no showing on the record before us that placing a can in a similar pair of pants would have benefited Bernez's defense, such as manifesting a noticeable bulge. Additionally, even if this would have been the case, the jury would have understood this claim from the evidence and defense counsel's argument. Both loss prevention officers testified they saw Bernez take the 16-ounce can and put it in his pocket. Defense counsel extensively cross-examined both officers regarding their ability to detect the soda can in Bernez's pocket, and questioned why neither the videotapes nor photographs clearly showed a bulge in the pocket. During closing argument, defense counsel held up a 16-ounce soda can and argued the can would have appeared on the video and photographs from the video if it had been in Bernez's pocket.
On this record, the jury had before it all the necessary evidence and argument to make a factual determination as to whether Bernez put the Coke can in his pants pocket, and there is no showing defense counsel's demonstration would have added anything material to the determination or changed the outcome of this case.
III. Failure to Object to King Cobra Can Evidence
Bernez contends he was deprived of the effective assistance of counsel because his trial counsel failed to object to evidence that the sheriff's deputy found an open can of King Cobra beer on Safford Avenue.
A. Factual Background
One of the sheriff's deputies testified that as she and several other deputies searched Safford Avenue, she found a King Cobra beverage can on the ground with some of the contents spilled. The ground was still wet. The deputy said she photographed and collected the can because at the time she had not been told what kind of beverage was stolen. There was no objection to this testimony.
One of the loss prevention officers testified that Rite Aid does not sell King Cobra in a can. During argument, the prosecutor briefly referred to the King Cobra can, but said: "That's not what was taken from the Rite Aid. We know [the loss prevention officer] told you 'No, we don't even sell cans of King Cobra.' So that's not something that was at the Rite Aid." She also acknowledged "we didn't find the can of Coke that is what both loss prevention officers told you was the item that was stolen."
B. Analysis
Bernez contends his counsel was ineffective for failing to object to the King Cobra can evidence.
To establish an ineffective assistance claim, an appellant must show his counsel's performance was deficient and he suffered prejudice resulting from the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-692.) As both elements are necessary, a court can reject an ineffective assistance claim solely on an absence of prejudice. (Id. at p. 697; In re Crew (2011) 52 Cal.4th 126, 150.)
The lack of an objection to the King Cobra evidence had no conceivable effect on the outcome of Bernez's case. The undisputed evidence established the King Cobra can was not the item that Bernez took from the Rite Aid store. Thus, at most, the deputy's testimony about finding the can weakened the prosecution's case, highlighting to the jury that the deputies were unable to find any evidence of the stolen Coca-Cola item in the area where Bernez walked.
Bernez contends "it is highly likely that jurors believed that [the King Cobra can] was the can that had been stolen from the Rite Aid." To buttress this contention, Bernez discusses the prosecutor's argument and quotes at length from the sheriff's deputy's testimony. These portions of the record do not support Bernez's assertion. We are required to presume the jury understood and properly evaluated the evidence, and neither the testimony nor the argument suggests the jury would have been confused about the evidence. The deputy who found the King Cobra can said she recovered the item because she did not know what beverage type had been taken from the Rite Aid. Rite Aid's security officer testified that the store does not sell King Cobra in a can. The prosecutor stated during argument that the King Cobra can was not taken from the Rite Aid store. Defense counsel briefly mentioned the beer can and reminded the jury it was not a can of Coke.
IV. Challenge to Restitution Fine and Fees
The trial court ordered Bernez to pay a (1) $2,000 restitution fine under section 1202.4, subdivision (b); (2) $39 theft fine under section 1202.5; (3) $40 court operations assessment under section 1465.8; (4) $30 criminal conviction assessment under Government Code section 70373; and (5) $154 criminal justice administration fee under Government Code section 29550.
The court also ordered an additional $2,000 restitution fine under section 1202.45, but suspended the fine until Bernez is released from prison and parole is revoked. Because the fine would not be imposed until and unless Bernez violates parole, any challenge to this fine is not ripe. (See People v. Wittig (1984) 158 Cal.App.3d 124, 137.)
Bernez contends these fees and fines violated his constitutional rights because the court did not make a finding he has the ability to pay these amounts. Bernez relies primarily on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which held imposing assessments and a fine on an indigent defendant violated the defendant's due process rights ensuring access to the courts and barring incarceration based on nonpayment of fines resulting from indigence. (Id. at pp. 1167-1168, 1172.) Bernez also relies on the Eighth Amendment's prohibition against excessive fines.
Bernez acknowledges he did not raise these arguments in the trial court, but argues his due process challenge is not forfeited because the challenge would have been futile before Dueñas. He contends the due process analysis reflected in the Dueñas decision was not foreseeable.
This argument does not excuse Bernez's failure to object because an inability to pay was a relevant factor at the time of his sentencing under the applicable statutes. When the court assessed the $2,000 restitution fine under section 1202.4, subdivision (b), the court was authorized to "consider" the defendant's ability to pay if it imposed a restitution amount above the statutory minimum ($300). (§ 1202.4, subd. (c).) The statute provides that the defendant has "the burden of demonstrating his . . . inability to pay." (§ 1202.4, subd. (d).) "The statute thus impliedly presumes a defendant has the ability to pay and expressly places the burden on a defendant to prove lack of ability." (People v. Romero (1996) 43 Cal.App.4th 440, 449.)
Section 1202.4, subdivision (c) states in part: "The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine . . . ." (Italics added.)
Despite his statutory right to do so, Bernez did not object to the $2,000 restitution fine based on a claimed inability to pay. This silence "is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas." (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033; see People v. Nelson (2011) 51 Cal.4th 198, 227 [applying the forfeiture rule to an unpreserved ability-to-pay challenge to a restitution fine]; People v. Miracle (2018) 6 Cal.5th 318, 356 [failure to object at sentencing forfeits excessive fine claim].) And because Bernez did not object at sentencing to the $2,000 restitution fine on ability-to-pay grounds, he has likewise forfeited the issue on appeal as to the remaining $263 in challenged assessments. (See Gutierrez, at p. 1033 ["As a practical matter, if [the defendant] chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees."].)
In his reply brief, Bernez notes that this court could consider the issue "under an ineffective assistance of counsel claim." By failing to develop this argument or raise it in his opening appellate brief, Bernez has not properly preserved the issue.
In any event, an ineffective assistance claim would fail on the record before us. A defendant can establish this claim on direct appeal only "in the rare case where the appellate record demonstrates 'there simply could be no satisfactory explanation' for trial counsel's action or inaction." (See In re S.D. (2002) 99 Cal.App.4th 1068, 1077.) In this case, counsel may have decided not to raise an ability-to-pay argument because any such challenge would have been futile. There is nothing on the record before us affirmatively establishing that Bernez would be unable to pay the fees and fines. To the contrary, there is at least some evidence that Bernez could afford the fines and fees, including that he had previously been employed in landscaping and construction; he is relatively young (26 years old at the time of sentencing) and could be employable in the future; and he would receive prison wages (see People v. Douglas (1995) 39 Cal.App.4th 1385, 1397).
On this record, we cannot conclude there was no reasonable explanation for counsel's failure to challenge the imposed fines and fees, and thus Bernez's ineffective assistance argument is unavailing.
DISPOSITION
Judgment affirmed.
HALLER, Acting P. J. WE CONCUR: AARON, J. DATO, J.