Opinion
B286407
02-19-2019
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER ESKRIDGE, Defendant and Appellant.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Nicholas J. Webster, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA142009) APPEAL from a judgment of the Superior Court of Los Angeles County, John J. Lonergan, Jr., Judge. Affirmed in part and reversed in part. Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Kenneth C. Byrne and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant and appellant Christopher Eskridge was convicted of two counts of perjury by declaration (Pen. Code, § 118, subd. (a)) and two counts of procuring or offering a false or forged instrument for filing (§ 115, subd. (a)). Eskridge appeals his felony convictions for violating section 115, contending he was wrongfully prosecuted under a general statute that is preempted by a more specific misdemeanor statute, Vehicle Code section 20. Eskridge's contention has merit. Accordingly, we reverse Eskridge's convictions for violating section 115, subdivision (a), and in all other respects affirm.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
The evidence relevant to the issue presented on appeal may be succinctly stated. On May 18, 2016, Eskridge purchased a 2007 Chrysler Sebring for $525 at a Los Angeles public auction. On June 15, 2016, Eskridge submitted to the California Department of Motor Vehicles (DMV) (1) a vehicle transfer form, falsely stating that he had purchased the Chrysler from his son, Christopher Eskridge Jr., for $100; and (2) a Statement of Facts form, falsely stating that his son, Eskridge Jr., had purchased the car from the auction. Both forms were signed under penalty of perjury.
The parties stipulated that Eskridge had suffered a previous conviction for being an unlicensed car dealer and had sold vehicles that were, and were not, registered to him.
2. Procedure
A jury convicted Eskridge of two counts of perjury by declaration (§ 118, subd. (a)) and two counts of procuring or offering a false or forged instrument for filing (§ 115, subd. (a)). The trial court suspended imposition of sentence and placed Eskridge on formal probation for five years, on condition, inter alia, that he serve 365 days in county jail. The court stayed the two section 115, subdivision (a) counts pursuant to section 654. It imposed a restitution fine, a suspended parole revocation restitution fine, a court operations assessment, and a criminal conviction assessment. Eskridge timely appealed.
DISCUSSION
Eskridge contends his felony convictions under section 115 subdivision (a) are precluded by the "Williamson rule" (In re Williamson (1954) 43 Cal.2d 651), which prohibits prosecution under a general statute when the conduct at issue is covered by a more specific statute. Specifically, Eskridge contends that on the facts here, prosecution under section 115, subdivision (a), is precluded by Vehicle Code section 20, a more specific statute that makes it a misdemeanor to knowingly make a false statement in any document filed with the DMV. This contention is well taken.
1. The Williamson rule
Generally, a prosecutor may opt to proceed under either of two statutes proscribing the same conduct. (People v. Cockburn (2003) 109 Cal.App.4th 1151, 1157.) But, it has long been held, under what has come to be known as the "Williamson rule," that where specific conduct is prohibited by a special statute, a defendant cannot be prosecuted under a general statute. (In re Williamson, supra, 43 Cal.2d at p. 654; People v. Mayers (1980) 110 Cal.App.3d 809, 813-814.) "Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute." (People v. Murphy (2011) 52 Cal.4th 81, 86 (Murphy); People v. Sun (2018) 29 Cal.App.5th 946, 950; People v. Henry (2018) 28 Cal.App.5th 786, 791.) The rule is not constitutionally required, but " 'serves as an aid to judicial interpretation when two statutes conflict.' [Citation.]" (Murphy, at p. 86; Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1007 (Hudson).) Typically, the issue arises where, as here, the special statute makes the offense a misdemeanor, but the prosecution has instead charged a felony under the general statute. (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250, fn. 14.)
The Williamson rule is triggered when "(1) 'each element of the general statute corresponds to an element on the face of the special statute' or (2) when 'it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.' [Citation.]" (Murphy, supra, 52 Cal.4th at p. 86; Hudson, supra, 7 Cal.App.5th at p. 1007.) Thus, in its "clearest application, the rule is triggered when a violation of a provision of the special statute would inevitably constitute a violation of the general statute." (Murphy, at p. 86.) But even where the general statute contains an element not within the special statute, the Williamson rule will still apply if violation of the special statute will commonly result in a violation of the general statute. (Murphy, at p. 87; People v. Sun, supra, 29 Cal.App.5th at pp. 951-952; People v. Henry, supra, 28 Cal.App.5th at pp. 792-793.) When "a special statute can be violated in two different ways, one of which does not violate the general statute," we "should consider only if the present conduct at issue would commonly violate the general statute." (People v. Henry, at p. 793; Murphy, at pp. 89-91.)
In Murphy, for example, the defendant submitted a false report to a deputy sheriff, stating that her vehicle had been stolen. In fact, she had crashed the car into a hillside. (Murphy, supra, 52 Cal.4th at pp. 84-85.) Convicted of the felony of offering a false instrument for filing under section 115, subdivision (a), she argued on appeal that her conviction was precluded by a more specific misdemeanor statute, Vehicle Code section 10501, which makes it unlawful to falsely report the theft of a vehicle. (Murphy, at p. 85.) Murphy concluded that, under the Williamson rule, Vehicle Code section 10501 was a more specific statute that supplanted section 115. (Murphy, at pp. 94-95.) Although Vehicle Code section 10501 could be violated in at least one way that did not violate section 115, filing a false vehicle theft report in violation of Vehicle Code section 10501 would commonly result in a violation of section 115, and therefore Williamson applied. (Murphy, at pp. 89, 91, 94; see People v. Sun, supra, 29 Cal.App.5th at pp. 949-951 [where defendant discharged a laser into the cockpit of an aircraft, section 247.5, specifically pertaining to the unlawful use of a laser, precluded prosecution for assault under section 245]; People v. Henry, supra, 28 Cal.App.5th at p. 789 [Vehicle Code section 40504, subd. (b), a specific statute making it a misdemeanor to sign a false or fictitious name on a traffic citation, precluded prosecution under section 529, a general statute prohibiting false personation]; Hudson, supra, 7 Cal.App.5th at pp. 1008-1010 [felony prosecution for offering a false document under section 115 was precluded by a specific Government Code provision making it a misdemeanor for certain officials to fail to file a form disclosing assets and investments].)
The defendant in Murphy also argued that her conviction under section 115, subdivision (a) was barred by the same statute at issue here, Vehicle Code section 20. (Murphy, supra, 52 Cal.4th at p. 85.) However, because Murphy concluded the conviction was barred by Vehicle Code section 10501, the court declined to reach the question of whether prosecution under section 115 was also precluded by Vehicle Code section 20. (Murphy, at p. 95, fn. 4.)
On the other hand, the Williamson rule does not apply when "a felony statute requires a more culpable mental state than a misdemeanor statute proscribing the same behavior," (Hudson, supra, 7 Cal.App.5th at p. 1007), or when the general statute contains an element absent from the special statute that would not commonly occur in the context of violation of the special statute, such that the two statutes "cover different conduct." (People v. Medelez (2016) 2 Cal.App.5th 659, 662; In re Charles G. (2017) 14 Cal.App.5th 945, 949; People v. Mullins (2018) 19 Cal.App.5th 594, 607-608; People v. Webb (2017) 13 Cal.App.5th 486, 492-493, disapproved on another ground in People v. Ruiz (2018) 4 Cal.5th 1100, 1122, fn. 8.)
2. Forfeiture
Preliminarily, the People argue that Eskridge has forfeited his contention by failing to raise it in the trial court. However, Eskridge correctly responds that because his convictions for violating section 115, subdivision (a) resulted in an unauthorized sentence, and because the issue presents a pure question of law, we may consider it despite his failure to object or move to dismiss below. The trial court imposed probationary terms of five years on both counts 2 and 4, the section 115 convictions, but under section 1203a, a probationary term for a misdemeanor is limited to three years. (See §§ 1203a, 19, Veh. Code, § 40000.5.) An unauthorized sentence—one that cannot be lawfully imposed under any circumstances in the particular case—may be corrected on appeal despite the absence of an objection below. (People v. Scott (1994) 9 Cal.4th 331, 354 [in considering an unauthorized sentence, appellate courts will "intervene in the first instance because such error is 'clear and correctable' independent of any factual issues presented by the record at sentencing"]; People v. Tua (2018) 18 Cal.App.5th 1136, 1140; People v. Williams (2017) 7 Cal.App.5th 644, 696; People v. Henry, supra, 28 Cal. App.5th at p. 791, fn. 3 [reviewing court may consider pure questions of law arising on undisputed facts even absent objection].) Accordingly, we consider the issue. (People v. Henry, at p. 791, fn. 3 [considering Williamson issue despite defendant's failure to move to dismiss the challenged count below].)
3. Prosecution of Eskridge under section 115 is precluded by Vehicle Code section 20
We turn, therefore, to consideration of whether Vehicle Code section 20 precludes Eskridge's prosecution under section 115, subdivision (a), a question of statutory interpretation upon which we exercise our independent judgment. (In re Charles G., supra, 14 Cal.App.5th at p. 949; People v. Prunty (2015) 62 Cal.4th 59, 71; People v. Tua, supra, 18 Cal.App.5th at p. 1140.)
Section 115, subdivision (a) provides: "Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony." Vehicle Code section 20 provides: "It is unlawful to use a false or fictitious name, or to knowingly make any false statement or knowingly conceal any material fact in any document filed with the Department of Motor Vehicles or the Department of the California Highway Patrol." Violation of section 115, subdivision (a), is a felony, whereas violation of Vehicle Code section 20 is a misdemeanor. (§ 115, subd. (a); Veh. Code, § 40000.5.) Section 115 is the more general statute because it covers a broader range of documents than does Vehicle Code section 20. (See Murphy, supra, 52 Cal.4th at p. 88.)
Here, Williamson applies because Eskridge's conduct of making a false statement in a document signed under penalty of perjury and filed with the DMV would commonly result in a violation of section 115. (See People v. Brown (2016) 6 Cal.App.5th 1074, 1081 ["commonly," for purposes of the Williamson rule, means usually, ordinarily, or generally].)
Vehicle Code section 20 can be violated in three ways: (1) by using a false or fictitious name in a document filed with the DMV or the California Highway Patrol; (2) by knowingly making a false statement in such a document; or (3) by knowingly concealing a material fact in such a document. We are concerned here only with method (2), knowingly making a false statement. (Murphy, supra, 52 Cal.4th at p. 89; People v. Henry, supra, 28 Cal.App.5th at p. 793 [When "a special statute can be violated in two different ways, one of which does not violate the general statute," we "should consider only if the present conduct at issue would commonly violate the general statute"]; People v. Brown, supra, 6 Cal.App.5th at p. 1082, fn. 2 ["the mere fact that a special statute can be violated in two ways, one of which does not violate the general statute, does not take the case outside the general-versus-special rule"].)
The elements of section 115, subdivision (a), are: (1) offering or procuring a false or forged instrument; (2) to be filed, registered or recorded in any California public office; (3) which, if genuine, might be filed, registered, or recorded; (4) with knowledge of the forgery or falsity. An offender who files a document with the DMV meets elements (2) and (3) of section 115, as well as the "offering" requirement in the first element. (See Murphy, supra, 52 Cal.4th at p. 88 ["A vehicle theft report that has been filed necessarily was 'offer[ed]' for filing. A report that has been filed with a law enforcement agency necessarily has been filed with a 'public office.' If the report has been filed, it is necessarily a document that 'if genuine, might be filed, registered, or recorded.' "].) An offender who knowingly makes a false statement in a document satisfies section 115's scienter and falsity requirements. And a document signed under penalty of perjury qualifies as an "instrument" for purposes of section 115. Thus, a defendant who engages in conduct like Eskridge's—filing with the DMV a document, containing a false statement, and signed under penalty of perjury—will commonly violate both section 115 and Vehicle Code section 20. Accordingly, the Legislature's adoption of Vehicle Code section 20, which specifically and narrowly addresses Eskridge's conduct, demonstrates the legislative intent that such conduct be prosecuted as a misdemeanor under Vehicle Code section 20, rather than as a felony under section 115. (See Murphy, at p. 85.)
What documents qualify as "instruments" for purposes of section 115 is not entirely clear. (See Murphy, supra, 52 Cal.4th at p. 92 ["There currently is no precise, generally accepted definition of the term 'instrument' for purposes of Penal Code section 115"].) The question has generated considerable discussion, with cases expanding the meaning of "instrument" over the years. (Ibid.; see generally People v. Powers (2004) 117 Cal.App.4th 291, 294-297; People v. Tate (1997) 55 Cal.App.4th 663, 666-667; Generes v. Justice Court (1980) 106 Cal.App.3d 678, 682-684.) In Murphy, the People conceded that the vehicle theft report at issue was an instrument, because it had been signed under penalty of perjury. (Murphy, at pp. 92, 94.) Murphy found it unnecessary to definitively resolve the definition of "instrument" for purposes of section 115, concluding instead that the filing of a false vehicle theft report would commonly violate section 115, even if the filing of other, less formal, documents might not. (Murphy, at p. 94.) The vehicle theft form—which the court inferred was commonly used by law enforcement agencies throughout California—called for a signature under penalty of perjury. (Ibid.) Likewise here, Eskridge signed the two documents at issue under penalty of perjury, and the People do not contest that they qualified as "instruments." Indeed, this must be so: to be found guilty of violating section 115, Eskridge had to have offered a false instrument.
People v. Wood (1958) 161 Cal.App.2d 24, directly supports this conclusion. In Wood, the defendant was convicted of violating section 115, based upon his filing with the DMV false "Dealer's Reports of Sale" and "Certificates of Non-Operation." On appeal, he argued the offenses charged were punishable only as misdemeanors under former Vehicle Code section 131, the precursor to Vehicle Code section 20, and the appellate court agreed. It reasoned: "We think it entirely clear that the Legislature intended the more recently enacted section 131, subdivision (d) of the Vehicle Code to provide the penalty for offenses of the type here involved. [¶] It seems too clear to be reasonably questioned that the acts of the appellant, for which he was prosecuted in this case, amounted simply to the filing with the Motor Vehicle Department of documents containing false statements as to the dates of the sales of certain automobiles, and as to the periods of time said automobiles had been out of operation. Clearly, no forgery was involved. Unquestionably, the acts charged amounted to violations of section 131, subdivision (d) of the Vehicle Code." (People v. Wood, at pp. 27-28.) Therefore, People v. Wood found the defendant should have been charged with misdemeanor violations of former Vehicle Code section 131. (People v. Wood, at p. 30.)
Former Vehicle Code section 131, subdivision (d), provided: " 'Any person who knowingly makes a false statement or conceals a material fact in any document required to be filed with the department as herein provided shall be guilty of a misdemeanor.' " (People v. Wood, supra, 161 Cal.App.2d at p. 27, emphasis omitted.)
Contrary to the People's contention, People v. Wood is not materially distinguishable from the instant matter. The People aver that Eskridge filed documents concerning "entirely fictitious events," unlike in Wood, where the documents were not false in their entirety. Not so. In Wood, the defendant filed documents pertaining to actual vehicle sales, but misstated the sales and vehicle non-operation dates. (People v. Wood, supra, 161 Cal.App.2d at p. 26.) Here, Eskridge filed documents pertaining to an actual vehicle sale, but misstated the sales price and the identities of the buyer and seller. We fail to see how these factual differences somehow limit People v. Wood's applicability to the instant matter.
The People also contend that the first Williamson test—that each element of the general statute corresponds to an element of the special statute—is unmet here. They point out that to violate Vehicle Code section 20 by omitting a fact, a materiality requirement applies, whereas section 115 contains no such materiality requirement. Vehicle Code section 20 requires that the document be filed, whereas section 115 requires only that the document be procured or offered for filing. Section 115 requires that the document, if genuine, could be legally filed, an element missing from Vehicle Code section 20. And, they posit that section 115 requires that a document "as a whole" is false or forged, whereas Vehicle Code section 20 requires only that the document contains a false statement. But these contentions are unavailing, because even if the elements are not entirely congruent, Williamson applies when a violation of the more specific statute will, as here, commonly result in a violation of the general statute. (Murphy, supra, 52 Cal.4th at pp. 86, 87; People v. Sun, supra, 29 Cal.App.5th at pp. 951-952.)
We address this argument where relevant, post.
Addressing this second Williamson test, the People aver that violation of Vehicle Code section 20 will not commonly result in violation of section 115, because a defendant may violate Vehicle Code section 20 in a variety of ways, some of which would not violate section 115. They hypothesize, for example, that a defendant could violate Vehicle Code section 20—but not section 115—by filing a genuine document using a fictitious name, or by filing a document that does not qualify as an "instrument."
In support of their contention, the People cite People v. Chardon (1999) 77 Cal.App.4th 205 (Chardon). There, the defendant signed a traffic citation with a false name. She was convicted of violating section 529, which prohibited impersonation of a real person when accompanied by an act that might harm the impersonated person or benefit the perpetrator. The defendant argued that a more specific misdemeanor statute, Vehicle Code section 40504—which prohibited giving a false or fictitious signature on a promise to appear—precluded the section 529 prosecution. (Chardon, at pp. 208, 213.) Chardon found Williamson inapplicable, reasoning that while giving a false signature would commonly violate Vehicle Code section 40504, an equally common violation would be committed by signing a fictitious name on the promise to appear, a method of violation that would not violate the false personation statute. (Chardon, at p. 214.)
But the People's argument is foreclosed by Murphy, which teaches that where a statute may be violated in more than one way, we must focus on whether the particular conduct at issue in the case would commonly violate the general statute. (Murphy, supra, 52 Cal.4th at pp. 89, 91.) In Murphy, the specific statute at issue, Vehicle Code section 10501, prohibited making a false vehicle theft report. The People argued that violation of it would not commonly result in a violation of section 115 because making a false oral report was just as common a means of violating the vehicle code section as was the filing of a written report, but an oral report would not violate section 115. (Murphy, at p. 89.) Murphy rejected this contention, explaining "even though the making of a false oral report of vehicle theft would not violate the general statute, our analysis should focus on the question of whether the filing of a false vehicle theft report"—the conduct underlying the prosecution in Murphy—"would necessarily or commonly result in a violation of Penal Code section 115." (Id. at p. 91.) "This approach is consistent with the rationale underlying the Williamson rule. In adopting a specific statute, the Legislature has focused its attention on a particular type of conduct and has identified that conduct as deserving a particular punishment. Consequently, we infer that the Legislature intended that such conduct should be punished under the special statute and not under a more general statute which, although broad enough to include such conduct, was adopted without particular consideration of such conduct." (Ibid.)
Thus, "Murphy makes clear the defendant's particular conduct is the starting point in determining whether the Williamson rule applies in a given case. We must decide whether what the defendant actually did to violate the specific statute would commonly result in a violation of the general statute . . . ." (People v. Sun, supra, 29 Cal.App.5th at p. 953.) "The only pertinent question is whether the manner in which appellant violated [the special statute] would commonly violate [the general statute]." (Id. at p. 952; People v. Henry, supra, 28 Cal.App.5th at p. 793 [where the special statute can be violated in different ways, "the reviewing court should consider only if the present conduct . . . would commonly violate the general statute"].) "[I]t is of no significance that [the specific statute] . . . can be violated in a way that would not trigger liability under [the general statute]. (People v. Sun, at pp. 951-952.) Indeed, after the People's brief was filed, in People v. Henry, the Sixth Appellate District recognized that its earlier opinion in Chardon did not survive Murphy. (People v. Henry, at pp. 795-796.)
The People also attempt to draw a distinction between documents that are wholly or entirely false, i.e., false at their "core," and documents that simply contain a single material misrepresentation or statement. Section 115, they argue, requires the former, while Vehicle Code section 20 requires only the latter. We do not believe this is a tenable distinction. In support, the People cite Generes v. Justice Court, supra, 106 Cal.App.3d 678, and People v. Denman (2013) 218 Cal.App.4th 800. In Generes, the defendant recorded a grant deed that purported to transfer from herself to herself an easement over land she did not own. (Generes v. Justice Court, at p. 681.) In People v. Denman, the defendant filed quitclaim deeds on distressed properties, transferring title to himself, despite the fact he had no right of ownership or title in the properties. (People v. Denman, at p. 802.) In both of these cases, the courts found the documents were false for purposes of section 115. (Generes v. Justice Court, at p. 682 [if defendant "did not own the interest she purported to convey, the instrument she filed was clearly false"; People v. Denman, at p. 809 [although the quitclaim deeds stated defendant was only transferring whatever title or interest he possessed, the deeds were "false in that they transferred an interest that [defendant] did not have"].)
But these authorities in no way stand for the proposition the People assert. Generes and Denman do not hold that other types of documents, which contain only false statements, do not qualify as "false" within the meaning of section 115. By its plain terms, section 115 does not require that every statement in an instrument be false, and, as the People point out elsewhere in their brief, section 115 has no materiality requirement. (People v. Feinberg (1997) 51 Cal.App.4th 1566, 1578-1579.)
Hudson is instructive. There, the defendant, a board member of a public agency, was required to file annually a statement of economic interest Form 700 disclosing her investments, income, and real property interests. Hudson concluded the Williamson rule precluded the People from prosecuting the defendant under section 115. (Hudson, supra, 7 Cal.App.5th at pp. 1005, 1007.) The People contended that Williamson did not apply because the Government Code section at issue allowed prosecution only if a defendant failed to file a Form 700, whereas section 115 required "actual falsification of an instrument." (Hudson, at p. 1009.) Hudson explained that the Government Code statute applied when a defendant either failed to file a Form 700, or filed a Form 700 that failed to make the necessary disclosures. (Ibid.) The court reasoned: "The People present, and we see no reason why, the filing of a Form 700 that purported to disclose all of the filing party's assets and investments but did not actually do so because of omissions is not equivalent to the offering of a 'false or forged instrument.' " (Id. at p. 1010.) Hudson's reasoning undercuts the People's argument here. If a Form 700 that is accurate except for certain omissions qualifies as a false or forged instrument for section 115 purposes, it cannot be the case that only wholly false instruments fall within section 115's rubric.
Moreover, the core purpose of section 115 is to protect the integrity and reliability of public records, and that purpose is served " ' "by an interpretation that prohibits any knowing falsification of public records." ' " (Hudson, supra, 7 Cal.App.5th at p. 1010.) An interpretation of section 115 that limited the statute's reach only to wholly false instruments would undermine the statute's purpose. Moreover, a test turning on whether an instrument or document was wholly false or simply contained a false statement is nebulous and would be exceptionally difficult to apply. Indeed, here Eskridge did not submit a wholly false document in the sense the Generes and Denman defendants did. The documents he submitted presumably contained some true facts: the make of the vehicle purchased, for example, and his ownership interest in the vehicle.
In sum, " '[t]he fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply.' " (Murphy, supra, 52 Cal.4th at p. 86.) Eskridge's section 115, subdivision (a) convictions are precluded by Vehicle Code section 20.
DISPOSITION
Eskridge's convictions in counts 2 and 4, for violation of section 115, subdivision (a), are reversed. In all other respects, we affirm.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
EGERTON, J.