Opinion
F074517
06-14-2018
In re the Marriage of TIMOTHY J. MARTIN and GUINEVERE E. MARTIN. TIMOTHY J. FROGUE, Appellant, v. GUINEVERE E. MURPHY, Respondent.
Thomas W. Casa for Plaintiff and Appellant. No appearance for Defendant 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S1501FL559407)
OPINION
APPEAL from an order of the Superior Court of Kern County. John L. Fielder, Judge. Thomas W. Casa for Plaintiff and Appellant. No appearance for Defendant and Respondent.
-ooOoo-
Timothy J. Frogue, formerly known as Timothy J. Martin, appeals from the trial court's order denying his motion to seal documents in his family law case file that show he was found to be in contempt for failing to pay court-ordered child support, for which he served time in jail and performed community service. Martin contends the trial court erred in denying the motion because it did not make the required determinations under California Rules of Court, rule 2.550. Alternatively, Martin contends excluding him from a benefit similar to the post-conviction relief afforded those found guilty of misdemeanor contempt violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article I, section 7 of the California Constitution. We reject Martin's arguments and affirm the order.
To avoid confusion, we will refer to appellant by his former last name, Martin.
Subsequent references to rules are to the California Rules of Court.
Guinevere E. Murphy did not file a respondent's brief in this appeal. We do not treat her failure to do so as a "default" or an admission that the trial court erred (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; Cal. Rules of Court, rule 8.220(a)(2)), but instead examine the record for prejudicial error on the basis of Martin's opening brief.
FACTUAL AND PROCEDURAL BACKGROUND
Martin initiated divorce proceedings in 1996. In June 2001, the Family Support Division of the Kern County District Attorney's Office filed an order to show cause and an affidavit for contempt. The affidavit alleged that in June 1999, Martin was found guilty of four counts of civil contempt for failing to pay child support, and he failed to pay child support for six months in 2000 and 2001. The parties stipulated to preparation of a probation officer's report regarding the ongoing child custody and visitation issues before the court.
A trial was held in November 2001 and a sentencing hearing in December 2001. The trial court found Martin guilty of the willful failure to pay child support for four of the six months alleged in the affidavit. The court ordered him to serve 14 days in jail and perform 160 hours of community service, which was suspended until Martin completed his jail time, when it would be permanently stayed. Martin failed to report to custody and was arrested five months later, on May 10, 2002. The trial court found Martin guilty of direct contempt for failing to report to custody and sentenced him to serve 14 days in jail, with a credit of four days. The court lifted the stay on the sentence of 160 hours of community service and ordered Martin to enroll in a community service program. Martin was ordered to return to the court with proof of enrollment on June 28, 2002 and to provide proof of completion by September 30, 2002. The court set a hearing for October 28, 2002, to review the terms of the sentence.
Following a hearing in July 2003, the trial court modified its previous order to allow Martin to serve his remaining community service hours in San Diego. The court set a compliance hearing for January 22, 2004 to determine whether Martin had "complied with the continued terms of this plea agreement[.]"
In November 2006, Martin and Murphy reached an agreement in which Murphy agreed to waive all child support arrears and Martin agreed not to oppose an adoption by Murphy's new husband. Martin's parental rights were terminated in February 2008 to allow for the stepparent adoption and the Department of Child Support Services dropped its case against Martin in June 2008.
Eight years later, Martin filed a motion pursuant to rule 2.550 to seal "any records related to the June 15, 2001 Order to Show Cause Re: Contempt" and to strike the records from the Register of Actions. Martin listed 29 documents that he wanted sealed and stricken, which he asserted he had lodged under seal.
Martin stated that since he was found in contempt in 2001, the family law case had come to a close after he signed over his parental rights to Murphy's new husband and he had "attempted to start his life fresh and anew." Martin claimed that in order to completely do that, he needed "to be free from the entanglements of his past life[.]" He explained that if his records were not sealed, he would be forced to disclose his contempt history to any future employer, which could prevent him from gaining the type of employment he desired. Moreover, the eight years that had passed since the family law case ended was "more than enough time for any potential need of 'public' access" to his records. Martin, who had changed his last name to Frogue, wished to put the life of Timothy Martin behind him and move forward with the life he had created as Timothy Frogue.
In his points and authorities, Martin argued his right to privacy overcame the right of public access to the records. He claimed he was having difficulty with school and employment whenever he had to disclose his prior contempt matter and having the record "finally expunged and sealed" would allow him to put everything behind him. In addition, the public did not have an overriding interest in knowing that his parental rights were terminated and contempt charges were filed against him.
Martin argued his right to privacy supported sealing the records, as the parties had not been in contact with each other for a number of years and there was no pending family law case. He asserted that if the records were not sealed, he would be "forever prejudiced in his future career plans" because he would be forced to disclose that he served jail time for contempt and anyone who performed a background search would discover his parental rights had been terminated. Martin wanted the "clean break and fresh start" that sealing the records would provide. He claimed the records he wanted sealed were narrowly tailored, as the public would still have access to many of the family law proceedings, but "the docket entries and pleadings which would pose to be most harmful" to his future "would be sealed from any prying eyes and from any prospective employer." He further claimed there were no less restrictive means to protect his privacy than to seal the records which portrayed him in a "negative light in any future employment and schooling situation."
Martin stated he submitted an unredacted version of the online register of actions under seal and asked the court to authorize the filing of "these documents under seal" and that his contempt proceedings be "expunged and sealed from his record." He also asked that no one, apart from the court, be authorized to inspect the sealed records unless they filed the appropriate paperwork pursuant to the California Rules of Court.
A hearing was held on August 26, 2016, at which Martin and his attorney appeared. The trial court denied the motion. Martin filed a notice of appeal from the order denying the motion and applied to the trial court for permission to prepare a settled statement on appeal, as no court reporter was present at the hearing. The trial court denied the request. Thereafter, Martin filed a motion in this court to obtain a settled statement on appeal, which we granted. Martin again submitted a proposed settled statement on appeal to the trial court. The trial court held a hearing to review the settled statement, during which it pointed out various revisions.
After further revisions, the trial court signed the settled settlement. The trial court stated that Martin's attorney argued the contempt records should be sealed for the following reasons: (1) Martin had returned to school, was obtaining a college degree, and wanted to obtain a juris doctor degree, but he was concerned about how the contempt records might affect his ability to pursue a law degree or be licensed by any state bar; (2) Martin had remarried and no longer lived in California; (3) Martin was living a different life than in 2001 and wanted to obtain further education, but the contempt records were prejudicing him; (4) the records were over 10 years old and there was no prejudice to any other party to grant the motion; (5) Martin was prejudiced by having to disclose the contempt proceedings when he applied for employment; and (6) the children had been adopted and were now adults, so sealing the records would not prejudice them.
The trial court found that there was no evidence to indicate what specific prejudice Martin may be suffering with respect to obtaining further education. The court denied the motion for the following reasons: (1) unlike some criminal activities, which are spur of the moment crimes, Martin's actions took some thought on his part; (2) Martin had been found guilty, beyond a reasonable doubt, after lengthy proceedings, and the court does not lightly sentence an individual to jail on contempt findings; (3) Martin was trying to place his past behind him, but in a way that could be considered misleading; and (4) any possible future state bar investigation should be able to consider contempt proceedings in deciding whether to license Martin as an attorney.
DISCUSSION
Sealing Records Under Rule 2.550
Martin sought to have the records of the contempt proceedings sealed pursuant to rule 2.550. On appeal, Martin contends the trial court failed to properly analyze his request, as it did not follow the requirement of rule 2.550 to balance his "overriding constitutional privacy interest against the public's First Amendment interest in access to court proceedings." We disagree.
" '[S]ubject to certain exceptions . . . a court "record must not be filed under seal without a court order." (Rule 2.551(a).)' " (Overstock.Com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 486 (Overstock.Com).) Pursuant to rule 2.550 and NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 (NBC Subsidiary), "trial courts may redact or seal particular documents to protect private information concerning an overriding privacy interest . . . ." (In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1568 (Marriage of Nicholas).)
"A strong presumption exists in favor of public access to court records in ordinary civil trials. (NBC Subsidiary, supra, 20 Cal.4th at p. 1212.) That is because 'the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.' (Id. at p. 1210.) Since the First Amendment guarantee of public access to the courts is at stake, family law departments may close their courtrooms and seal their court records only in limited circumstances, and only when they expressly identify the particular facts that support the existence of NBC Subsidiary's constitutional standards." (Marriage of Nicholas, supra, 186 Cal.App.4th at p. 1575.)
"Based on the standards articulated in NBC Subsidiary, supra, 20 Cal.4th at pp. 1208-1209, fn. 25, the Judicial Council in 2001 adopted two rules (now rules 2.550 and 2.551) of the California Rules of Court concerning sealed records." (Marriage of Nicholas, supra, 186 Cal.App.4th at p. 1575, fn. 6.) "A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts justifying the sealing." (Rule 2.551(b)(1).) The moving party must lodge with the court the record for which the sealing order is being sought, which the court holds "conditionally under seal" until it rules on the motion or application. (Rule 2.551(b)(4).) The party seeking an order sealing court records has the burden to justify the sealing. (See H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.)
" 'A "lodged" record is a record that is temporarily placed or deposited with the court but not filed.' [Citation.] 'Filing a document makes it a part of the permanent court file, whereas lodging a document makes it only temporarily a court record.' " (Overstock.Com, supra, 231 Cal.App.4th at p. 487, fn. 8.)
The court may order a record sealed only upon making express findings that: "(1) There exists an overriding interest that overcomes the right of public access to the record; [¶] (2) The overriding interest supports sealing the record; [¶] (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; [¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) No less restrictive means exist to achieve the overriding interest." (Rule 2.550(d).) If the court denies the motion, it must return the lodged record to the moving party, or permanently delete it if it is in electronic form, unless the moving party notifies it within 10 days of the order denying the motion that the lodged record is to be filed unsealed. (Rule 2.551(b)(6).)
When the court issues an order denying sealing, it is not required to make express factual findings. (Overstock.Com, supra, 231 Cal.App.4th at p. 488.) "California courts have taken varying approaches to the standard of review" of an order granting or denying a motion to seal court records, depending on whether the trial court sealed records or refused to seal or unseal records. (Id. at p. 490.) For an order refusing to seal records, the reviewing court determines "whether substantial evidence supports the trial court's express or implied findings that the requirements for sealing are not met." (Id. at p. 492.)
There is a split of authority on the standard of review of orders sealing records. (Compare In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 302 [reviewing court first determines whether the trial court's findings are supported by substantial evidence and then determines whether the trial court abused its discretion in sealing the records] with People v. Jackson (2005) 128 Cal.App.4th 1009, 1021 [appropriate standard of review is de novo "independent review . . . 'to determine whether the facts satisfy the rule of law' "].) Martin contends we should independently review the record, citing Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 424-425. That case, however, has no application here, as it did not involve the sealed records rules.
At the outset, we note that when Martin filed his motion, the documents he sought to seal had been available in the trial court's file for approximately 15 years. Although the family law case concluded in 2008 and Martin presumably knew the documents were in the file, he did not file a motion to seal until eight years later. Case law instructs that rules 2.550 and 2.551, as a matter of policy, should not be interpreted to allow "an open-ended timeframe for filing a motion to seal records long after the underlying substantive matter has been decided." (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588, 601; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 9:417.5, p. 9(I)-188 ["If documents are filed in court before the motion is granted, the right to move for an order sealing the documents is waived. The court cannot entertain a later motion to seal documents that are already a matter of public record."].) Based on these authorities, the trial court would have acted well within its discretion had it denied Martin's motion as untimely.
Even if the motion were timely, substantial evidence supports the trial court's decision to deny it. With respect to the first required finding, Martin argues he had an overriding interest that overcomes the right to public access of the record. He identifies his overriding interest as his "substantial privacy interest in his family court files regarding his conviction of contempt, his absconding for six months and his subsequent incarceration." In support of his contention, he relies on United States Department of Justice v. Reporters Committee for Freedom of the Press (1989) 489 U.S. 749 (Reporters Committee), in which the United States Supreme Court held a Federal Bureau of Investigation (FBI) rap sheet was not subject to disclosure to a third party, as it " 'could reasonably be expected to constitute an unwarranted invasion of personal privacy' within the meaning of the Freedom of Information Act (FOIA), 5 U.S.C. § 522(b)(7)(C) . . . ." (Reporters Committee, supra, 489 U.S. at pp. 751, 780.)
The contempt records in Martin's family court files are hardly comparable to a rap sheet. The privacy interest in these records is negligible because they are already part of the court's public record and are readily available from the court. (Cf. Reporters Committee, supra, 489 U.S. at p. 764 [in finding FBI rap sheets were subject to FOIA protection, "[p]lainly there is a vast difference between the public record that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information"].) Unlike the cumbersome, multiple court, possible nationwide search that provided de facto privacy in Reporters Committee, here the contempt records are clearly identifiable in a single case.
The California cases Martin cites in a footnote also do not help him, as they involve arrest records that did not result in conviction, not convictions, or the dissemination of criminal history information, not the retention of such information. (See Central Valley Ch. 7th Step Foundation, Inc. v. Younger (1989) 214 Cal.App.3d 145, 151-152 ["dissemination of arrest records to authorized agencies for employment, licensing and certification purposes significantly affects plaintiffs' right to privacy guaranteed by the California Constitution."]; Loder v. Municipal Court (1976) 17 Cal.3d 859, 862, 868-869 [rejecting plaintiff's contention that he was entitled to erasure or return of the record of an arrest which did not result in conviction; the Court held arrest records could be maintained to aid law enforcement and criminal justice agencies]; Housing Authority v. Van de Kamp (1990) 223 Cal.App.3d 109, 111 [holding section 11105, subdivision (b)(10) allows local governmental entities access to criminal records for purposes of occupational certification and licensing functions, not public housing].)
Thus, Martin has not presented any authority that shows he has a privacy interest in a judicial determination of contempt. Moreover, he has not shown that any privacy interest in his contempt records overcomes the right of public access to the records. As the trial court found, licensing agencies, such as a state bar, have an interest in the contempt records when deciding whether to license Martin as an attorney. The passage of time and the end of the family court proceedings do not lessen this interest. Since Martin does not have an overriding interest that overcomes the right of public access to the records, the first finding required to seal the records is not established.
In addition, Martin has not shown there is a substantial probability that any privacy interest in the contempt records will be prejudiced if the records are not sealed. As the trial court found, while Martin claimed that the contempt records prejudiced him in his attempt to obtain further education, he did not present any evidence to indicate the specific prejudice to which he was referring. He also did not present any evidence he would be prejudiced in his attempts to obtain employment or if he were to apply for licensure as an attorney. On this basis alone, the trial court reasonably could find that Martin failed to show prejudice if the contempt records were not sealed.
Based on the evidence presented in the trial court, the trial court reasonably could find that Martin did not satisfy his burden to justify sealing of the contempt records. Therefore, the trial court did not err in denying his motion to seal the records pursuant to rule 2.550.
Equal Protection
Martin contends that excluding him, as a person convicted of civil contempt, from the "similar benefit of post-conviction relief" afforded those individuals found guilty of misdemeanor contempt violates the equal protection clauses of the United States and California Constitutions. While he recognizes there are "significant differences between criminal and civil prosecutions of contempt," he argues there are important similarities in that both proceedings are prosecuted by the district attorney's office, both are "punitive in nature resulting from the loss of liberty[,]" and both "result in post-conviction damage to each groups' reputation with profound consequences." He contends: "The group convicted of contempt as a misdemeanor can expunge or clear their criminal record through Penal Code section 1203.4a. There is no such provision available to appellant or those persons convicted of civil contempt which resulted in incarceration for failure to pay child support."
Martin did not raise this equal protection argument in the trial court, and therefore never offered any evidence to support the various factual allegations set forth in the previous paragraph, which go to the core of his contention. While Martin asserts the issue is cognizable on appeal because it involves a pure question of law, we disagree. Since the trial court did not have an opportunity to pass on these points, Martin may not raise this theory for the first time on appeal. (Brandon S. v. State ex rel. Foster Family Home and Small Family Home Ins. Fund (2009) 174 Cal.App.4th 815, 831-832; Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879.)
In any event, his equal protection argument is without merit. " ' " 'The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.' " ' [Citations.]' [Citation.] 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.]' [Citation.] The use of the term 'similarly situated' in this context refers only to the fact that ' "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." ' " (Woods v. Horton (2008) 167 Cal.App.4th 658, 670. " '[A]n equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.' " (Id. at p. 670.) If the two groups are similarly situated, we "examine whether there is a rational basis for the disparate treatment sanctioned by the Legislature. A classification is constitutionally infirm only if 'so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the Legislature's actions were irrational.' " (In re Conservatorship and Estate of Edde (2009) 173 Cal.App.4th 883, 891.)
Martin's equal protection claim is based on a misapprehension of the relief that Penal Code section 1203.4a provides. Section 1203.4a, and its sister statute section 1203.4, "allow people convicted of crimes to obtain a dismissal of their convictions under certain circumstances." (Skulason v. California Bureau of Real Estate (2017) 14 Cal.App.5th 562, 567 (Skulason).) "Section 1203.4 applies to those who have successfully completed probation, while section 1203.4a applies to those convicted of either a misdemeanor or an infraction and not placed on probation. Under both statutes, the consequence of a dismissal is that the convicted person is, with certain exceptions, 'released from all penalties and disabilities resulting from the offense of which he or she has been convicted.' (§§ 1203.4, 1203.4a.)" (Skulason, supra, 14 Cal.App.5th at pp. 567-568.)
Subsequent statutory references are to the Penal Code.
Martin assumes his contempt conviction is the equivalent of a misdemeanor conviction without probation, which would fall under the protections and remedies of section 1203.4a. In our view, the sentence imposed on the judgment of civil contempt here is more akin to a criminal conviction where the sentence is imposed to ensure an offender's compliance with the terms of the sentence as ordered by the court, which would fall under the protections and remedies of section 1203.4.
While a dismissal under section 1203.4 is sometimes described as an "expungement," "the statutory release from penalties and disabilities does not literally expunge the conviction and does not render the conviction a legal nullity." (Danser v. California Public Employees' Retirement System (2015) 240 Cal.App.4th 885, 894-895 (Danser).) The statute "simply authorizes a court to grant relief to individuals who successfully complete the terms of probation by mitigating some of the consequences of conviction." (Baranchik v. Fizulich (2017) 10 Cal.App.5th 1210, 1225.)
"Penal Code section 1203.4 'was never intended to obliterate the fact that [a] defendant has been "finally adjudged guilty of a crime." ' [Citations.] 'It merely frees the convicted felon from certain "penalties and disabilities" of a criminal or like nature.' " (Danser, supra, 240 Cal.App.4th at pp. 894-895 (italics added); see Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1114 [as used in section 1203.4, the words "penalties and disabilities" refers to " 'criminal penalties and disabilities or matters of a kindred nature,' " not " 'non-penal restrictions or qualifications imposed for public protection, such as licensing of attorneys . . .' "].)
While the cases discussing this principle mostly involve section 1203.4, "their analyses are equally relevant in construing section 1203.4a given the statutes' parallel language." (Skulason, supra, 14 Cal.App.5th at p. 568.)
A dismissal under these statutes confers more limited relief than nullification of the conviction, as (1) other statutes specifically provide that an order under section 1203.4 is ineffectual to avoid specified consequences of a prior conviction; (2) by its own terms, an order under section 1203.4 "does not relieve" the ex-offender of "the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office [or] for licensure by any state or local agency . . ." (§ 1203.4, subd. (a)(1)); and (3) the statute allows the prior conviction to be pleaded and proved in "any subsequent prosecution of the defendant for any other offense," and it has the "same effect as if probation had not been granted or the accusation or information dismissed" (§ 1203.4, subd. (a)(1)). (See, Skulason, supra, 14 Cal.App.5th at pp. 568-569.)
Furthermore, the criminal conviction of a defendant granted relief under sections 1203.4 and 1203.4a is still a matter of public record. (People v. Field (1995) 31 Cal.App.4th 1778, 1787 [records of a conviction dismissed pursuant to section 1203.4 are accessible to the public]; People v. Sharman (1971) 17 Cal.App.3d 550, 552 [section 1203.4 does not require conviction records to be removed from public access].) (Skulason, supra, 14 Cal.App.5th at p. 569.)
Here, Martin claims that, under equal protection analysis, he is entitled to the same relief that section 1203.4a provides. Martin, however, is not seeking the same relief, as he is seeking to have his contempt records sealed. Sections 1203.4 and 1203.4a do not require sealing of the records of a dismissed conviction; to the contrary, as we have explained, the records of the conviction remain available to the public. Moreover, section 1203.4, and by analogy section 1203.4a, require disclosure of the fact of the conviction to a licensing authority such as the state bar. Thus, Martin's equal protection claim fails because section 1203.4a does not provide the relief he seeks.
Martin has not shown that those convicted of civil contempt are similarly situated to individuals convicted of criminal contempt with respect to the purpose of sections 1203.4 and 1203.4a. As we have explained, the purpose of those sections is to mitigate some of the consequences of the conviction by relieving the individual of criminal penalties and disabilities, or matters of a criminal nature. Martin does not identify any criminal penalties or disabilities to which a person found guilty of civil contempt could be exposed that would require the relief provided by these sections. He asserts only that he remains subject to the prejudicial effects of his contempt conviction and incarceration in attempting to attain employment, licensing, or higher education. He did not present any evidence below, however, to support his claim of prejudice. Moreover, the protections afforded in the Penal Code statutes do not give him the right to deny the fact of his conviction in all employment and licensing situations. Because Martin has failed to carry his burden of demonstrating that those convicted of civil contempt are similarly situated to those convicted of misdemeanor contempt, his equal protection claim fails.
Even assuming there is sufficient similarity between the two groups to warrant equal protection scrutiny, the Legislature's provision of relief to criminal defendants who have demonstrated substantial efforts at rehabilitation from criminal "penalties and disabilities" is clearly rationally related to a legitimate government objective of providing those defendants relief from the stigma and impediments necessary to complete their rehabilitation. The Legislature could have rationally concluded that such relief is not necessary for those convicted of civil contempt, as they are not subject to the same criminal penalties and disabilities.
DISPOSITION
The trial court's order is affirmed. Because no respondent's brief was filed, Martin will bear his own costs on appeal.
/s/_________
ELLISON, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
SMITH, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------