Opinion
D070270
07-31-2017
THE PEOPLE, Plaintiff and Respondent, v. ROGER TUCKER, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale and Kristen Kinnaird Chenelia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN352560) APPEAL from a judgment of the Superior Court of San Diego County, David G. Brown, Judge. Affirmed as modified. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J. Beale and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Roger Tucker appeals a judgment following his jury conviction on one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) ). The trial court also found true allegations that Tucker had a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 1170.12, 668). On appeal, Tucker contends the trial court violated his constitutional right to due process of law by increasing his sentence based on those prior conviction allegations. He also contends the court issued an unauthorized sentence by staying, rather than striking, the punishment for the jury's true finding on the section 12022.7, subdivision (a) allegation for personally inflicting great bodily injury in committing the instant offense.
All statutory references are to the Penal Code.
Based on our reasoning below, we determine that Tucker admitted the truth of the prior conviction allegations and his admissions were voluntary and intelligent under the totality of the circumstances in the record. At the same time, we conclude the judgment must be modified to reflect that the punishment for the true finding on the section 12022.7, subdivision (a) allegation is stricken. As modified, the judgment will be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Tucker was charged with one count of assault with a deadly weapon (§ 245, subd. (a)(1)) arising out of an altercation at a convenience store where Tucker hit the store manager on his head several times with a rock. Following trial, a jury found Tucker guilty of the assault and found true related allegations that in committing the offense Tucker personally used a deadly weapon (§ 1192.7, subd. (c)(23)) and personally inflicted great bodily injury on the store manager (§ 12022.7, subd. (a)). After Tucker waived his rights to a jury or bench trial on the prior conviction allegations, the trial court imposed a total term of nine years in prison.
Given the issues on appeal, a detailed recitation of the underlying facts is unnecessary.
DISCUSSION
A. Prior Conviction Allegations
Tucker contends the trial court violated his constitutional right to due process of law by increasing his sentence based on the prior conviction allegations: (1) that he did not admit; (2) for which he received inadequate advisements under In re Yurko (1974) 10 Cal.3d 857 (Yurko); and (3) for which he received inadequate advisements of their penal consequences.
1. Applicable Law
In Yurko, the California Supreme Court held that "before a court accepts an accused's admission that he has suffered prior felony convictions," the reasoning of Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl) require that the accused be given "express and specific admonitions as to the constitutional rights waived by an admission" in the same manner as in the case of an accused's guilty plea. (Yurko, supra, 10 Cal.3d at p. 863.) Specifically, as the court subsequently summarized Yurko's holding, "before accepting a criminal defendant's admission of a prior conviction, the trial court must advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses. [Citation.] Proper advisement and waivers of these rights in the record establish a defendant's voluntary and intelligent admission of the prior conviction. [Citations.]" (People v. Mosby (2004) 33 Cal.4th 353, 356 (Mosby).) Neither the federal nor our state Constitution extends the right to a jury trial to the factual determination of whether a defendant has suffered a prior conviction. (Id. at p. 360.) "That right is purely statutory in origin. [Citations.]" (Ibid.) Nevertheless, Mosby "assume[d] for the purpose of this discussion that a defendant's due process trial rights, at least under our state Constitution, encompass the rights to remain silent and to confront witnesses. (Cal.Const., art. I, § 15.)" (Ibid.)
The absence of express admonitions regarding, and express waivers of, those rights does not require reversal of a defendant's admissions of prior conviction allegations regardless of prejudice. (People v. Howard (1992) 1 Cal.4th 1132, 1178.) Rather, the error is harmless and the factual determination on a prior conviction allegation must be upheld if, on our examination of the record of the entire proceeding, we conclude "the defendant's admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances. [Citation.]" (Mosby, supra, 33 Cal.4th at p. 361.) In cases in which a defendant receives no express advisements of any of the rights (i.e., silent-record cases) and does not expressly waive his or her right to trial on a prior conviction allegation, "we cannot infer that in admitting the prior [conviction] the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses." (Id. at p. 362.) However, in cases in which a defendant is expressly advised of his or her right to a jury trial but not the accompanying rights to remain silent and to confront adverse witnesses (i.e., incomplete or partial-advisement cases), a defendant's admission of a prior conviction allegation may or may not require reversal depending on whether our review of the totality of the circumstances shows the defendant's admission was voluntary and intelligent. (Id. at pp. 362-365.)
In Mosby, the court concluded the defendant's admission of a prior conviction allegation was voluntary and intelligent based on its review of the totality in the circumstances of that case. (Mosby, supra, 33 Cal.4th at pp. 364-365.) Immediately after the jury found the defendant guilty of a felony offense, the trial court advised the defendant that he had the right to a jury trial on a prior conviction allegation, but he was not advised of his accompanying rights to remain silent and to confront adverse witnesses. (Id. at pp. 356, 358, 364.) The defendant then waived his right to a jury trial on, and admitted, the prior conviction allegation. (Id. at pp. 358-359.)
That prior conviction occurred at least six years before the trial in Mosby. (Mosby, supra, 33 Cal.4th at pp. 356, 359 [prior conviction occurred on May 5, 1993, and current arrest occurred on April 13, 1999].)
Rejecting the defendant's argument that he would not necessarily have understood that a trial on the alleged prior conviction would afford him the same rights that he had at the trial on the underlying offense, Mosby stated: "[D]efendant, who was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had [committed the offense]. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right to confrontation." (Id. at p. 364.) The court also considered the defendant's prior experience with the criminal justice system, as was shown by the entire record, in determining whether he understood his rights to remain silent and confront adverse witnesses. (Id. at p. 365.) Mosby stated:
"Here defendant's prior conviction was based on a plea of guilty, at which he would have received Boykin-Tahl advisements. As the Court of Appeal here concluded: '[H]e knew he did not have to admit [the prior conviction] but could have had a jury or court trial, had just participated in a jury trial where he had confronted witnesses and remained silent, and had experience in pleading guilty in the past, namely, the very conviction that he was now admitting.' " (Mosby, supra, 33 Cal.4th at p. 365.)Accordingly, Mosby concluded under the totality of the circumstances that the defendant voluntarily and intelligently admitted his prior conviction even though he was advised of, and waived, only his right to a jury trial. (Mosby, supra, 33 Cal.4th at p. 365.)
Regarding advisements of the penal consequences of admissions of prior conviction allegations, Yurko stated:
"[A]s a judicially declared rule of criminal procedure [citation] an accused, prior to the time the court accepts his admission of an allegation of a prior criminal conviction or convictions, is entitled to be advised . . . [, inter alia,] of the precise increase in the term or terms which might be imposed, if any, in the accused's case pursuant to . . . applicable statutes [citations] . . . ." (Yurko, supra, 10 Cal.3d at p. 864.)"[A]dvisement as to the consequences of a plea [or admission of a prior conviction allegation] is not constitutionally mandated." (People v. Walker (1991) 54 Cal.3d 1013, 1022.) Accordingly, Walker stated:
"First, '. . . an uninformed waiver based on a failure of the court to advise an accused of the consequences of an admission constitutes error which requires that the admission be set aside only if the error is prejudicial to the accused.' [Citation.] 'A showing of prejudice requires the appellant to demonstrate that it is reasonably probable he would not have entered his plea if he had been told about the [penal consequences].' [Citations.] [¶] 'Second, the error is waived absent a timely objection.' " (People v. Walker, supra, 54 Cal.3d at pp. 1022-1023.)"Thus, when the only error is failure to advise of the consequences of the plea [or admission of a prior conviction allegation], the error is waived if not raised at or before sentencing. Upon a timely objection, the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is 'reasonably probable' the defendant would not have pleaded guilty [or admitted the truth of the prior conviction allegation] if properly advised [of its penal consequences]. [Citation.]" (People v. Walker, supra, 54 Cal.3d at p. 1023.)
2. Defendant's Admissions of Prior Convictions
Tucker first contends the trial court's imposition of the sentence enhancements based on his prior convictions must be reversed because he did not actually admit he suffered those prior convictions. We disagree.
On March 17, 2016, the day after the jury returned its guilty verdict and the date scheduled for the bench trial on the prior conviction allegations, the trial court inquired whether Tucker was "going to admit to the priors." In Tucker's presence, his counsel replied: "That is correct, sir. Mr. Tucker today will be admitting to two priors . . . ." The prosecutor reminded the court that a waiver of Tucker's right to a jury or bench trial on the prior conviction allegations was required. The court then requested that Tucker's counsel accomplish that waiver. His counsel stated:
"Mr. Tucker, you have the right to have either a jury or a bench trial, which is a trial in which no jury is present, just a judge to decide matters, to contest whether these cases were a prior, whether it's a strike prior, case ending 431, or whether it is a prison prior, case ending 046. Do you give up and waive that right now so we can proceed to sentencing on this, proceed to get a date for sentencing?"Tucker answered: "Yes." The court then set a date for sentencing.
On May 2, 2016, the trial court conducted the sentencing hearing and used Tucker's prior felony conviction to enhance his sentence. Tucker did not object to imposition of the enhancements based on any purported lack of admissions of the prior conviction allegations.
Based on our review of the record, we conclude that although Tucker did not expressly state he admitted the truth of the prior conviction allegations, his express waiver of his right to a trial by either a jury or the court (i.e., a bench trial) on those allegations constituted, in effect, implicit admissions of the prior conviction allegations in the circumstances of this case. On March 17, 2016, the date scheduled for the bench trial on the prior conviction allegations, Tucker was present when the trial court inquired whether he was going to admit the truth of the prior conviction allegations and when his counsel replied that Tucker would be admitting those allegations. Tucker then expressly waived his right to a jury or bench trial on the allegations.
The record also shows Tucker had extensive experience with the criminal justice system. The probation report shows that over a 30-year period beginning in 1983, he had 16 separate guilty pleas, including six guilty pleas to felony offenses. Given Tucker's presence at the hearing when his counsel confirmed that he (Tucker) was going to admit the allegations, along with his extensive experience with the criminal justice system, we doubt Tucker could have believed he had not either expressly or implicitly admitted the truth of those allegations or that the court would not proceed toward sentencing him on the instant offense and the prior conviction allegations. Alternatively stated, we cannot infer based on the record in this case that, after Tucker waived his right to a jury or bench trial on the allegations in order to proceed to sentencing, he nevertheless believed he had not admitted the truth of those allegations and there would be a further trial or other hearing on those allegations prior to sentencing.
We also note that at his sentencing hearing Tucker did not object to imposition of additional punishment for the one strike (§§ 667, subds. (b)-(i), 1170.12, 668) and prior serious felony (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) allegations on the specific ground that he had not, in fact, admitted those prior conviction allegations. The only reasonable inference from the circumstances of this case is that Tucker impliedly admitted the allegations. Although it would have been the better practice for the trial court to obtain express admissions from Tucker, the court's failure to do so did not preclude him from impliedly admitting the truth of those allegations, which we conclude is sufficient for the purpose of imposing the additional punishment for those allegations. Tucker does not cite any case authority to the contrary.
3. Yurko Advisements
Tucker also contends the trial court violated his constitutional right to due process of law by increasing his sentence based on the prior conviction allegations for which he received inadequate advisements under Yurko, supra, 10 Cal.3d 857. Although he concedes he was advised of his right to a jury trial before he admitted the prior conviction allegations, he argues he was not advised of his right to confront adverse witnesses or his right to remain silent and that under the totality of the circumstances his admission was not voluntary and intelligent.
Tucker correctly notes that the trial court did not expressly advise him of his concomitant rights to confront adverse witnesses and to remain silent before it accepted his admissions of the truth of the prior conviction allegations. By failing to do so, the court erred under Yurko, supra, 10 Cal.3d 857. However, as discussed above, Yurko error in partial advisement cases does not require reversal of prior conviction admissions or enhancements if under the totality of the circumstances the record shows the defendant's admissions were voluntary and intelligent. (Mosby, supra, 33 Cal.4th at pp. 362-365.)
Based on our review of the entire record, we conclude that under the totality of the circumstances Tucker, at the time of his admissions of the prior conviction allegations, was aware of his rights to confront adverse witnesses and to remain silent. At his preliminary hearing, Tucker was present when his counsel replied affirmatively to the trial court's question of whether Tucker had been advised of his constitutional rights. On May 14, 2016, Tucker pled not guilty to the offense charged in the amended information, denied its related allegations, and was present when his counsel stated he had been advised of his constitutional rights. During the guilt phase of his trial, Tucker was present when his counsel cross-examined the prosecution's witnesses. The day after conclusion of that trial, he admitted the allegations. Accordingly, like the court in Mosby, we conclude that Tucker was aware of his right to confront adverse witnesses and waived that right when he admitted the prior conviction allegations. (Mosby, supra, 33 Cal.4th at p. 364 ["[B]ecause [the defendant] had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation."].)
Unlike the defendant in Mosby, Tucker did not exercise his right to remain silent and, instead, testified in his defense. As a result, Mosby does not control on the question of whether Tucker was aware of, and waived, his right to remain silent. Nevertheless, based on the totality of the circumstances, we conclude Tucker was aware of and waived that right. As discussed above, Tucker was present at his preliminary hearing when his counsel replied affirmatively to the trial court's question of whether he had been advised of his constitutional rights. On May 14, 2016, Tucker pled not guilty to the offense charged in the amended information, denied its related allegations, and was present when his counsel again stated he had been advised of his constitutional rights. Tucker had an extensive criminal history, involving 16 guilty pleas, including six felony guilty pleas, over a 30-year period. Because Tucker presumably was advised of his right to remain silent along with his rights to a jury trial and to confront adverse witnesses when he pled guilty in those prior cases and, more recently, was advised by his defense counsel of his constitutional rights, including the right to remain silent, at the time of his preliminary hearing and when he denied the prior conviction allegations of the amended information, we infer from the totality of the circumstances that Tucker was, in fact, aware of, and waived, his constitutional right to remain silent before he admitted the truth of the prior conviction allegations. (Cf. Mosby, supra, 33 Cal.4th at pp. 364-365.) Accordingly, based on our review of the totality of the circumstances as shown in the entire record, we conclude Tucker voluntarily and intelligently admitted the truth of the prior conviction allegations despite being expressly advised only of his right to a jury or bench trial. (Ibid.)
People v. Lloyd (2015) 236 Cal.App.4th 49, cited by Tucker, is factually and procedurally inapposite. In Lloyd, the defendant did not admit the prior prison term allegations until more than seven months after the end of his trial and the record did not show the defendant had ever pled guilty before. (Id. at pp. 56, 59-60.) In this case, Tucker's admissions of the allegations occurred one day after his trial ended and he had pled guilty on 16 prior occasions. Therefore, Lloyd does not persuade us to reach a contrary conclusion.
4. Advisement of Penal Consequences
Tucker also contends the trial court violated his constitutional right to due process of law by increasing his sentence based on prior conviction allegations for which he received inadequate advisements regarding the penal consequences of admitting those allegations. As discussed above, before a defendant admits the truth of a prior conviction allegation, he or she must be advised of the direct consequences of that admission. (Yurko, supra, 10 Cal.3d at p. 864; People v. Walker, supra, 54 Cal.3d at pp. 1020, 1022; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.) However, that advisement is not constitutionally mandated, but is, instead, "a judicially declared rule of criminal procedure." (Yurko, at p. 864; see also People v. Wright (1987) 43 Cal.3d 487, 495.) Accordingly, any error by the trial court in not advising a defendant of the penal consequences of his or her admission of prior conviction allegations "is waived if not raised at or before sentencing. Upon a timely objection, the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is 'reasonably probable' the defendant would not have pleaded guilty [or admitted the truth of the prior conviction allegation] if properly advised [of its penal consequences]. [Citation.]" (People v. Walker, at p. 1023.) Because the record does not show Tucker objected to his admissions of the prior conviction allegations either at the time of those admissions or at the time of his sentencing on the specific ground that he was not adequately advised of the penal consequences of the admissions, we conclude he forfeited or waived that objection by not timely objecting on that ground below. (Ibid.)
Even assuming Tucker had timely objected, we would nonetheless conclude he did not carry his burden on appeal to show he was not adequately advised of the legal or penal consequences of his admissions on the prior conviction allegations. Moreover, even had he been advised differently it is not reasonably probable he would have refused to admit the prior convictions. (People v. Walker, supra, 54 Cal.3d at p. 1023.) On May 14, 2016, immediately prior to the prosecution's filing of the amended information (which added the serious prior felony conviction allegation), Tucker was present when his defense counsel stated on the record that he had discussed with Tucker the ramifications of the amended information and, in particular, its newly added five-year serious felony conviction allegation. Tucker's counsel stated: "Yes. I explained to him [(Tucker)] that now the minimum that he could receive is a nine[-year term]. The maximum that he could receive is a 16[-year term] because of the amended [information], and his desire is to not take the seven years." The trial court then asked Tucker: "Is that correct, Mr. Tucker?" Tucker replied, "Yes, sir." The court then accepted the prosecution's filing of the amended information and arraigned Tucker on that information, to which his counsel stated that he (Tucker) pleaded not guilty and denied all of its allegations. On May 17, three days later and after the jury found Tucker guilty, Tucker admitted the truth of the prior conviction allegations. Although the court did not again advise Tucker that the maximum sentence he could face as a result of the prior conviction allegations was 16 years, nothing had changed that would affect his understanding.
The reference by Tucker's counsel to "not tak[ing] the seven years" presumably was to an apparent plea offer made by the prosecution. --------
At Tucker's sentencing hearing, the prosecutor noted that the probation report omitted the five-year serious felony conviction enhancement in presenting its recommendations to the court. When the prosecutor then stated that the range of terms for the court's consideration was 12, 14, or 16 years, Tucker replied, "What?" However, he never followed that question up with any expression or statement indicating that he had never been advised of the 16-year maximum term. Instead, Tucker's counsel confirmed: "[W]e always knew that the nickel (i.e., five-year enhancement) was there, and so looking at the [probation report's] recommendation, if we could get to the nine[-year term] by using the nickel to five years, doubling the low term, which is two, which would make it four, four plus the five is the nine, and then striking the three-year allegation." And the court followed defense counsel's suggestion and imposed a nine-year term. The record thus demonstrates that at no time during the sentencing hearing did Tucker object on the ground that he had not been advised of the maximum 16-year term. We therefore conclude it is not reasonably probable Tucker would not have admitted the prior conviction allegations had he been advised differently. (People v. Walker, supra, 54 Cal.3d at p. 1023.) B. The Penal Code Section 12077.7 Enhancement
Tucker contends the trial court issued an unauthorized sentence by staying, rather than striking, the punishment on the section 12022.7, subdivision (a) enhancement (i.e., consecutive three-year enhancement) for personally inflicting great bodily injury in committing the assault. In his opening brief, he requests that we amend the judgment and the trial court's records "to reflect that the punishment was stricken, rather than stayed." However, in his reply brief, he requests that we remand the matter to the trial court to consider whether it intended to strike the entire allegation or only the three-year prison term for that allegation.
At Tucker's sentencing, his counsel noted that the trial court could impose a total term of nine years if it struck "the three-year allegation." The prosecutor indicated the court could impose a total term of 9, 12, 14, or 16 years by staying the "[section] 12022.7 allegation." He later observed that the court could "stay the three years on the [section] 12022.7 allegation for the great bodily injury." He also suggested the court could "stay the three years on the great bodily injury allegation" and "stay that great bodily injury allegation." The trial court then stated:
"If I select the low term and stay the three years and apply the five years, what would that get the court to?" (Italics added.)Both the prosecutor and Tucker's counsel confirmed the total sentence would be nine years. The court stated: "Then let's do that." The court then imposed a total term of nine years, stating in its minute order that "punishment of 3 years is hereby stayed."
Under section 1385, subdivision (a), a trial court has discretion to, "in furtherance of justice, order an action to be dismissed." Section 1385, subdivision (c)(1), provides: "If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a)." In particular, a court under section 1385 may exercise its discretion to "strike the additional punishment for the enhancements provided in section 12022.7 . . . ." (People v. Thomas (1997) 56 Cal.App.4th 396, 405.) However, "[t]he failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]" (People v. Bradley (1998) 64 Cal.App.4th 386, 390-391.) An unauthorized sentence may be corrected at any time, whether by the trial court or an appellate court. (People v. Smith (2001) 24 Cal.4th 849, 854; People v. Scott (1994) 9 Cal.4th 331, 354.)
Both parties argue, and we agree, that the trial court erred by issuing an unauthorized sentence to the extent it "stayed" the section 12022.7, subdivision (a) three-year enhancement. As discussed above, the court only had discretion under section 1385, subdivision (a), to strike or impose either the entire allegation or just its three-year punishment. Because the court did not have authority to stay the allegation or its punishment, it issued an unauthorized sentence. However, because the trial court clearly expressed its intent on the record, we need not remand this matter; instead, we can modify the judgment to reflect the proper exercise of the court's discretion under section 1385, subdivision (a).
The record shows that immediately before the trial court's statement, "Let's do that," which effectively announced its ruling, the judge inquired of counsel what total term would result if it were to "select the low term and stay the three years and apply the five years . . . ." (Italics added.) In so doing and imposing a nine-year total term, the court clearly indicated that it chose not to impose the three-year punishment for the section 12022.7, subdivision (a) allegation. Although counsel inconsistently suggested the court could strike or stay the entire section 12022.7, subdivision (a) allegation for causing great bodily injury or just its three-year punishment, the court's language, quoted above, showed its clear intent to not impose the three-year punishment rather than to strike (or "stay") the entire allegation.
Accordingly, we modify the judgment to reflect that the three-year prison term for that allegation is stricken, while affirming the true finding on the allegation. (People v. Bradley, supra, 64 Cal.App.4th at pp. 390-391; People v. Smith, supra, 24 Cal.4th at p. 854; People v. Scott, supra, 9 Cal.4th at p. 354.) The clerk of the trial court shall amend the abstract of judgment to properly reflect this modification.
DISPOSITION
The judgment is modified to show that the three-year prison term for the true finding on the section 12022.7, subdivision (a) allegation is stricken. In all other respects, the judgment is affirmed. The clerk of the superior court is directed to prepare and file an amended abstract of judgment reflecting the modification and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.
DATO, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.