Opinion
A148999
11-28-2018
THE PEOPLE, Plaintiff and Respondent, v. VANESSA HAMILTON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-151693-9)
Appellant Vanessa Hamilton was found guilty of felony arson and first-degree burglary. With additional allegations, including a commitment under Penal Code section 667.5, subdivision (b) (prison prior), Hamilton was sentenced to six years in state prison.
All further citations are to the California Penal Code unless otherwise indicated.
Hamilton claims that CALCRIM No. 1502's instruction on the meaning of "burn" is inadequate and that the pinpoint instruction proposed by Hamilton and given by the court did not cure the error. She argues there was insufficient evidence that the inhabited structure burned. As to the lesser offense, the court gave CALCRIM No. 1520 (attempted arson) and CALCRIM No. 3518 (completion of the verdict form for lesser offenses); Hamilton argues that the court's oral explanation about completing the verdict form erroneously directed the jury not to consider the lesser offense until it had decided the arson charge. We find sufficient evidence to support the arson conviction and no instructional error as to the arson and attempted arson instructions.
Hamilton's final claim of error—conceded by the People—is that the prosecution did not prove that Hamilton did not remain out of prison custody and free of a felony conviction for five years prior to the offense (the prison prior "washout" period). Hamilton argues—but the People dispute—that retrial on the enhancement would violate the bar to double jeopardy. As described below, we conclude retrial is appropriate.
We reverse and remand for a retrial on the prison prior allegation. The judgment is otherwise affirmed.
BACKGROUND
A. Factual Background
Hamilton lived with her boyfriend, Jesus Perez, in his house in Richmond (house) until November 2014, when they broke up and she moved out. Their intimate relationship continued until August 6, 2015, the date of the incident (incident). Hamilton's brother, Kenneth Hayes, and his fiancée, Carmen Hunt, lived in a bedroom converted from a garage attached to the house.
On the day of the incident, after Perez arrived home from work around 4:00 p.m., Hamilton came to the house to complain about a television she bought from him. Outside the house, they argued and then Hamilton started hitting Perez. Perez went into the house, to his bedroom, which Hamilton entered through a window. They discussed their relationship—which Perez said was over—and he asked Hamilton to leave the house. She left but said that she would be back. Perez locked the door, left his bedroom window unlocked and went into the bathroom to take a shower.
Upon his return from work between 4:00 and 5:00 p.m., Hayes saw Hamilton at the house, and again later that evening when she knocked on his bedroom door. Hayes opened the door, saw Hamilton at the top of the stairs leading to the kitchen and heard her say she was going to "set this mother fucker on fire." When Hayes asked Hamilton what was going on, she said that she was tired of Perez "fucking with her emotions" and complained that Perez would not let her come in. Hayes told her to leave Perez alone and returned to his room. Hunt, who had been watching television with Hayes, also heard Hamilton yell "I'm getting ready to burn this mother fucker down while this mother fucker is in the shower."
While getting out of the shower, Perez heard Hamilton knock on the door and tell him to come out of the bathroom. Perez told Hamilton that he would be right out, but he noticed a water-like liquid seeping into the bathroom. The liquid smelled like gasoline, and Perez became concerned. His clothes and sandals already on, Perez grabbed his cell phone and opened the bathroom door. Outside, he saw Hamilton approximately four feet away holding a lighter.
Hamilton told Perez, "walk through, you mother fucker," and Perez lifted his head up and ran through the liquid to get outside. As Perez walked through the bathroom door, Hamilton set fire to the liquid. Perez's pants caught fire, but he extinguished the flames with his hands and was not injured. He then filled a pan with water and doused the fire.
Hayes had seen Hamilton holding a canister in her hand, but he did not ask about it. He could not smell gasoline coming from the canister while he was speaking to Hamilton, but he smelled gasoline after the fire occurred. A few minutes after returning to his room, Hayes heard Perez yelling that the house was on fire and telling them to get out. Hayes opened the door and saw the house filled with smoke. Hayes helped Perez extinguish the fire by putting water on it.
In her testimony, Hamilton denied setting the fire. She testified that around the time of the incident, she and her son, Javonee Wilson, went to the mall and visited family. Wilson testified "the whole day [it was] me and my mother", explaining that he helped her move some furniture around in the morning, before they went to the mall and then to Antioch to visit his daughter. Hamilton testified that, in the afternoon, while her son napped, she walked to Perez's house to obtain the $50 he owed her for the broken television set, but she then returned home and went with Wilson first to the mall and then to Antioch to visit her granddaughter.
B. Procedural Background
Hamilton was charged by information on October 1, 2015 with one count of felony arson of an inhabited structure (§ 451, subd. (b)), with three enhancement allegations: 1) that she used an accelerant (§ 451.1, subd. (a)(5) (accelerant allegation)); 2) that she was on felony probation at the time of the crime (§ 1203, subd. (k)); and 3) that an arson conviction made her ineligible for probation (§ 1203, subd. (e)(9)). Hamilton was also charged with first-degree burglary (§ 459), with the enhancement that a nonparticipant presence in the residence during the crime made it a "violent felony" (§ 667.5, subd. (c)(21)). One prison prior (§ 667.5, subd. (b)), and several prior felony convictions (making her presumptively ineligible for probation under § 1203, subd. (e)(4)) were also alleged.
After trial the jury found Hamilton guilty of arson and first-degree burglary and the accelerant allegation true. Hamilton waived her right to a jury trial on the prison prior and, on July 8, 2016, the court tried the allegations, finding true both the prison prior and eight prior felony convictions for purposes of section 1203, subdivision (e)(4).
Pursuant to section 1385, the court struck the accelerant allegation and sentenced Hamilton to a total of six years in state prison: the midterm of five years for the arson conviction, with an additional year for the prison prior. The court imposed a midterm four-year sentence for the burglary conviction to be served concurrent with the arson sentence and ordered various fines and fees.
Hamilton filed a timely notice of appeal.
DISCUSSION
A. Instruction on Burning
Hamilton requested CALCRIM No. 1502 and asked that it be modified to include: "The setting of a fire which does not burn the structure itself does not violate the law." The court gave the requested pinpoint over the People's objection. She argues on appeal that the court prejudicially erred because the instruction permitted "a reasonable juror [to] conclude that the fire that was set in this case caused damage, without making the necessary finding that a part of the structure burned." She contends the court should have defined "burn" using language in CALJIC No. 14.91: "[t]he mere blackening of property by smoke is not a burning. A charring which destroys any of the material is a burning." The People contend, having proposed and approved the modified CALCRIM No. 1502 instruction and not requested the additional language, Hamilton forfeited this claim.
"The CALJIC and CALCRIM instructions should never be used together. While the legal principles are obviously the same, the organization of concepts is approached differently. Mixing the two sets of instructions into a unified whole cannot be done and may result in omissions or confusion that could severely compromise clarity and accuracy." (Judicial Council of California Criminal Jury Instructions (2018 ed.) p. xxii.)
We agree that Hamilton forfeited this claim for appellate review, but had it been preserved it is without merit. " 'A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Grimes (2016) 1 Cal.5th 698, 724, quoting People v. Lang (1989) 49 Cal.3d 991, 1024.)
After the People rested, in her section 1118.1 motion, Hamilton challenged the sufficiency of the evidence of burning, contending that the evidence did not satisfy the definition of "burn" in In re Jesse L. (1990) 221 Cal.App.3d 161, 166 (Jesse L.) or People v. Haggerty (1873) 46 Cal. 354, 355 (Haggerty). She argued, "if blackening is not enough, then soot should not be enough, especially on a surface such as tile would not show (sic) the burning of fibers or wasting of fibers as is contemplated in the Haggerty (sic) case." However, Hamilton acknowledged that CALCRIM No. 1502 was "the appropriate instruction" and did not argue that more was needed.
During the jury instruction conference, the court confirmed that the parties were "comfortable with the instruction [CALCRIM No. 1502] in its final form," but noted the defense requested an additional definition. To reflect the Jesse L. holding, defense counsel asked to add a sentence, at the end of the form instruction: " 'The setting of a fire which does not burn the structure itself does not violate the law.' " Over the People's objection, the court agreed to defense counsel's proposed modification, explaining that the new sentence just restated the third element of the offense as defined by CALCRIM No. 1502 ("The fire burned an inhabited structure or inhabited property") and would not confuse the jury: "I don't see any harm in doing so and certainly what you have inserted would seem to be the holding in [Jesse L.]. So in this instance I am going to acquiesce to what the defense has requested, but the rest of the instruction would remain unchanged." Defense counsel replied, "Agreed," and he did not request any further modifications to CALCRIM No. 1502 and did not object when the court read the modified version of the instruction to the jury.
Having requested the pinpoint and approved CALCRIM No. 1502 before it was given , Hamilton contends the court had a sua sponte duty to give a further pinpoint instruction because the language she requested "helped to further emphasize that part of the structure of the building has to burn, [but] the instruction still failed to adequately define what it means for something to 'burn.' " We disagree. CALCRIM No. 1502—without the sentence requested by Hamilton—has been approved by the Judicial Council and accurately states the law. (See Haggerty, supra, 46 Cal. 354, 355; see also Jesse L., supra, 221 Cal.App.3d at pp. 166-167.) The court gave the pinpoint Hamilton requested. Absent a request for an additional pinpoint, the trial court had no duty to instruct further. (People v. Barton (1995) 12 Cal.4th 186, 197.) The court accurately stated the law and Hamilton forfeited any claim of error.
B. Sufficient Evidence of Burning
Hamilton argues the evidence was insufficient to prove that the fire burned any part of the structure as required by section 451, subdivision (b). "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Jones (1990) 51 Cal.3d 294, 314.) "On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (Ibid.) "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." (Ibid.) "Thus, if a verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder." (Ibid.)
Under section 451, "[a] person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned . . . any structure, forest land, or property." (§ 451.) Under subdivision (b), "[a]rson that causes an inhabited structure or inhabited property to burn is a felony punishable by imprisonment in the state prison for three, five, or eight years." (§ 451, subd. (b).)
Perez described the damage the fire caused to his house: "There was smoke everywhere and the doors had some bubbles on them." Hayes referred to photographs depicting "[s]moke damage throughout the whole entire house" that remained at the time of trial and would require the "whole house . . . to be repainted." Hunt added that there was "smoke residue all throughout the house. [¶] On the walls, the ceilings, mainly in the living room. It was on the floors, the walls, the ceiling, the kitchen, was on the ceiling and the walls, and in our room, the ceiling and some on the walls. And in the bathroom . . . there was smoke all in the bathroom."
Richmond Police Officer John Ecker, who responded to the incident, described the damage as "black marks on the walls and ceilings" in the hallway adjacent to the bathroom and "a black mark" and "liquid" on the floor. He investigated the incident as arson because "[s]omebody burned it." Another responder, Officer Khoa Nguyen, testified that "[he] saw what appeared to be a burned hallway-area of the home." He said that "[a]s both a police officer [and] in my personal life, I have seen things that are burned, so I know what burned items looked like." In response to the question "What about this particular area appeared burned to you?" he answered: "There's black soot on the ground and it smelled as if a recent fire[] had just occurred." He then described the smell as "a smoky, ashy smell that is a common smell after a fire has been extinguished."
Each side also presented expert testimony assessing the fire damage. The prosecution's expert opined that photographs of the damage showed evidence of a fire: "I am basing that on the dark material on the floor that appears to be sooting . . . because I can see footprints through it . . . . I see wispy soot staining on a vertical wall that surrounds that same material on that floor. The soot staining that I see on the wall is consistent with smoke from an ignitable liquid pour or splash on the floor near that wall surface." Hamilton's expert, a fire investigator for insurance companies, agreed that the photographs depicted the "burning of a room." He added that the photographs depicted "soot deposits," rather than "charring," of the floor tiles because the tile "by definition, is noncombustible." Campbell acknowledged, however, that "wooden baseboard[s]" adjacent to the floor would "be far quicker [sic] damaged than tile."
Arguing the insufficiency of the evidence of burning, Hamilton relies on Jesse L. which quoted Haggerty, as follows: " 'Upon the question of what is a sufficient burning to constitute the crime, Mr. Bishop states the rule thus: "The word 'burn' enters into the definition of arson at common law; and it occurs in many statutes. It means to consume by fire. If the wood is blackened, but no fibers are wasted, there is no burning; yet the wood need not be in a blaze. And the burning of any part, however, small, completes the offense, the same as of the whole. Thus, if the floor of the house is charred in a single place, so as to destroy any of the fibers of the wood, this is sufficient burning in a case of arson." ' " (Jesse L., supra, 221 Cal.App.3d at p. 166, italics added.)
In Jesse L., the court found sufficient evidence of burning to support an arson conviction because the fire investigator's "uncontradicted testimony of 'burn patterns' on the floor of the building and bottom edge of the counter and on the face of the doors was sufficient to establish that an area on the floor and a door were so charred so as to destroy the fibers of the wood by the fire set by the appellant." (Jesse L., supra, 221 Cal.App.3d at p. 167.) Similarly, in Haggerty, the court affirmed an arson conviction supported by evidence that "a spot on the floor was charred, so as to destroy the fibers of the wood by the fire set by the defendant." (Haggerty, supra, 46 Cal. 354, 355.) In People v. Lee, the court found sufficient evidence under section 451, subdivision (b) where the fire burned wall-to-wall carpet and the carpet padding below. (People v. Lee (1997) 24 Cal.App.4th 1773, 1778.)
The photographs and testimony of the lay and expert witnesses demonstrated that the fire damaged various portions of the structure, including the baseboards, an interior door, and the smoke-stained interior walls. The evidence showed that the paint on the door "bubbled" and that the walls required repainting. From this evidence the jury could infer that some part of the structure, no matter how small, had been burned. The prerequisite for arson of an inhabited structure is satisfied by burning something permanently attached to a building that was an integral part of the structure. (People v. Lee, supra, 24 Cal.App.4th at pp. 1777-1778.) The bubbling of the paint adhering to an interior door was further evidence that part of the structure burned. (Id. at p. 1778 ["evidence the wall-to-wall carpeting in this case was burned by the fire is ample evidence of arson under section 451, subdivision (b)"].)
Having heard this evidence, the jury was instructed to consider whether "[t]he fire burned an inhabited structure," defining "set fire to or burn" as "to damage or destroy with fire either all or part of something, no matter how small the part. The setting of a fire which does not burn the structure itself does not violate this law." We presume that the jury followed these instructions. (People v. Prince (2007) 40 Cal.4th 1179, 1295.) Viewed in the light most favorable to the judgment, the evidence was sufficient to prove the "burn[ing]" "of an inhabited structure" element of section 451, subdivision (b).
C. Instruction on Consideration of Lesser Included Offenses
As to the lesser offense of attempted arson, Hamilton argues the court misdirected the jury "from considering or discussing the lesser offense . . . before returning a verdict on the greater offense." She acknowledges that the trial court both read and gave the jury copies of CALCRIM No. 1520 (attempted arson) and CALCRIM No. 3518 (completing the verdict form for lesser offenses). But Hamilton identifies the oral statement which followed the reading of CALCRIM No. 3518 as erroneous: "If you find [Hamilton] not guilty, and only if you find her not guilty, then, and only then, you go to the lesser offense" and "in essence what the instruction is telling you, that you do not, do not reach the lesser offense unless and only if you cannot—you do find the defendant not guilty of the greater." Hamilton argues this explanation violated People v. Kurtzman (1988) 46 Cal.3d 322, 330—which held that "the jury must acquit of the greater offense before returning a verdict on the lesser included offense," but the court may not control the sequence in which the jury considers greater and lesser offenses—and precluded the jury considering the lesser included offense of attempted arson.
Hamilton acknowledges her failure to object to the court's extemporaneous explanation of this instruction. Nonetheless, we will consider this claim to determine whether the alleged error affected Hamilton's substantial rights. (People v. Olivas (2016) 248 Cal.App.4th 758, 772 (Olivas), citing People v. Ngo (2014) 225 Cal.App.4th 126, 149 [" ' "Whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim" ' "]; § 1259 ["The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"].)
We review claims of instructional error de novo. (See People v. Waidla (2000) 22 Cal.4th 690, 733; Olivas, supra, 248 Cal.App.4th at pp. 772-773.) If a challenged instruction is ambiguous, we determine whether there is a " 'reasonable likelihood that the jury construed or applied the challenged instructions in a manner' contrary to law." (Olivas, at p. 772.) Finally, even where the trial court has misdirected the jury, reversal is not warranted "unless it appears 'reasonably probable' the defendant would have achieved a more favorable result had the error not occurred." (People v. Breverman (1998) 19 Cal.4th 142, 149, citing People v. Watson (1956) 46 Cal.2d 818, 836; accord, People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. 7 [Kurtzman error "appears to implicate California law only"], overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; Kurtzman, supra, 46 Cal.3d at p. 335; Olivas, supra, 248 Cal.App.4th at p. 775.)
Having reviewed both the oral and printed instructions we find no error. The court's challenged oral statements were not included in the printed instructions provided to the jurors for use during their deliberations. " 'To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control.' " (People v. Mills (2010) 48 Cal.4th 158, 200-201 [rejecting claim of reversible error where trial court misspoke multiple times while reading instructions to the jury].) The jury here indisputably received the correct written instruction on consideration of lesser included offenses, CALCRIM No. 3518. In pertinent part, this instruction informed the jury, "It is up to you to decide the order in which you consider each crime and the relevant evidence, but I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime." This instruction was entirely consistent with Kurtzman, and Hamilton does not challenge it.
Second, we agree with the People that the court made the statements in the context of instructing them how to complete the verdict forms, after it had read the full instructions on arson and attempted arson. In that context, the jury likely understood the court was explaining the manner in which they were to complete the verdict forms, not controlling the order of their deliberations. (Cf. Kurtzman, supra, 46 Cal.3d at p. 335.)
The prosecutor's closing argument reinforced the correct instruction by making it clear that the jury could find Hamilton guilty of either arson or attempted arson: "You will be instructed on a lesser included offense of attempted arson, and the Judge will tell you how that lesser included offenses work. Essentially, if you find all of the elements of arson, but you don't find that the structure itself actually burned for some reason, that is how you would get to an attempted arson, so just be aware of that. If you guys believe that she set the fire, but for some reason you don't agree that part of the actual property burned, based on the testimony, based on the photographs, that is where you get to attempted arson." In this context, there is no " 'reasonable likelihood that the jury construed or applied' " those statements " 'in a manner' contrary to law." (Olivas, supra, 248 Cal.App.4th at p. 772.)
Third, Hamilton has not shown that, absent the court's oral statements, it is reasonably probable that she would have obtained a more favorable result. (People v. Breverman, supra, 19 Cal.4th at p. 149.) In addressing the question of prejudice, our Supreme Court has noted that, even when a trial court commits Kurtzman error by improperly instructing the jury about the order of deliberations, there is an "inherent difficulty" in demonstrating prejudice from such error. (People v. Fields (1996) 13 Cal.4th 289, 309, fn. 7.) Prejudice arising from Kurtzman error is hard to show because, "in the abstract," an erroneous instruction that a jury must acquit on a greater charge before turning to lesser charges "appears capable of either helping or harming either the People or the defendant. In any given case, however, it will likely be a matter of pure conjecture whether the instruction had any effect, whom it affected, and what the effect was." (People v. Berryman, supra, 6 Cal.4th at p. 1077, fn. 7.)
The trial court's comments are not comparable to those at issue in Kurtzman. There is no basis to conclude that the jury understood the court's oral explanation as a direction not to deliberate on the lesser charge until agreeing on the arson count. Further, given the elements of the charge upon which the jury's verdict depended (the burning element of the arson offense), coupled with the absence of any juror questions during the brief deliberations, it would be pure speculation to assume the jurors reached the arson—rather than an attempted arson—verdict based solely on their recollection of the trial court's oral explanation of how to complete the verdict forms. Where there is no indication to the contrary, we presume the jury followed the written instructions it received for purposes of its deliberations. (People v. Edwards (2013) 57 Cal.4th 658, 746, quoting People v. Wilson (2008) 44 Cal.4th 758, 803 [" 'We of course presume "that jurors understand and follow the court's instructions." [Citation.] This presumption includes the written instructions. [Citation.] To the extent a discrepancy exists between the written and oral versions of jury instructions, the written instructions provided to the jury will control' "].) As with her other claim of instructional error, Hamilton did not object to the court's oral statement at any time and therefore forfeited this meritless claim. (People v. Virgil (2011) 51 Cal.4th 1210, 1260.)
In Kurtzman, the jury asked during deliberations, "Can we find the defendant guilty of manslaughter without unanimously finding him not guilty of murder in the second degree?" (Kurtzman, supra, 46 Cal.3d at p. 328.) The judge responded, "No, you must unanimously agree on the second degree murder offense before considering voluntary manslaughter." (Ibid.) The jury convicted the defendant of second degree murder. (Id. at p. 324.)
Hamilton also argues the cumulative effect of the evidentiary and instructional errors requires reversal of the judgment. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill, supra, 17 Cal.4th at p. 844.) We reject both of Hamilton's arguments and find no error.
D. Remand for Retrial on section 667.5(b) prior
The parties agree that the prosecution failed to present evidence sufficient to prove the prison prior based on Hamilton's November 22, 2004 conviction for receiving stolen property (§ 496, subd. (d)). They agree that there was no evidence Hamilton "had been either in prison or committed an offense that led to a felony conviction between the dates of November 26, 2006 . . . and August 6, 2015" (i.e., the five-year "washout" period required for the enhancement to apply). Our review of the record confirms that the prosecution failed to disprove the washout period.
The parties dispute whether double jeopardy principles preclude retrial on the allegation. Both the United States Supreme Court and the California Supreme Court have definitively declared that the state and federal prohibitions against double jeopardy do not apply to proceedings in noncapital cases to determine the truth of prior conviction allegations, sentencing enhancements, or penalty allegations. (Monge v. California (1998) 524 U.S. 721, 734; People v. Seel (2004) 34 Cal.4th 535, 542; People v. Barragan (2004) 32 Cal.4th 236, 240-242; People v. Monge (1997) 16 Cal.4th 826, 829; People v. Jenkins (2006) 140 Cal.App.4th 805, 813-816.) Specifically, the prosecution's failure to present evidence negating the washout period for purposes of the prison prior enhancement does not bar retrial of that issue. (People v. Fielder (2004) 114 Cal.App.4th 1221, 1234.) Retrial of an alleged prior conviction is both permissible and proper. (People v. Barragan, supra, 32 Cal.4th at p. 241.)
We note, but decline, Hamilton's invitation to depart from established precedent that the double jeopardy clause does not preclude retrial on a prior conviction allegation in a noncapital sentencing context. (People v. Trujillo (2006) 40 Cal.4th 165, 173-174.) We remand the case for retrial of the prison prior, specifically the washout period.
DISPOSITION
We reverse and remand for a retrial on the trial court's finding on the section 667.5, subdivision (b) allegation. We otherwise affirm the judgment.
/s/_________
Ross, J. We concur: /s/_________
Siggins, P.J. /s/_________
Jenkins, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------