Opinion
A154827
10-25-2019
THE PEOPLE, Plaintiff and Respondent, v. RAMON TITO AGUILAR, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 16-NF-000560-A)
A jury convicted defendant Ramon Aguilar of molesting his two nieces, V. and M., and the trial court sentenced him to 45 years to life in prison. On appeal, he claims that CALCRIM No. 1193, the jury instruction on expert testimony about Child Sexual Abuse Accommodation Syndrome (CSAAS), reduced the prosecution's burden of proof in violation of his due process rights. He also claims that his sentence is cruel and/or unusual under the federal and state Constitutions. We order minor corrections to the abstract of judgment and minute order and strike $70 in assessments but otherwise affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Background.
Aguilar, who was born in 1974, married his wife, A., in 2002. A. has two older brothers, one of whom is V.'s father and one of whom is M.'s father. V.'s parents have two other children, V.'s older brother and her twin sister. V. and her sister were born in late 1997. M.'s parents have one other child, M.'s older brother. M. was born in late 1999.
For several years after Aguilar and A. married, they lived in a two-bedroom Daly City apartment with A.'s mother. V.'s family lived in the San Diego area, and M.'s family lived in the North Bay Area. The three families were "very close." V. and her siblings often spent holidays and school breaks in Northern California, and the other two families would visit her family in Southern California. In addition, M. would often stay with Aguilar and A. on weekends.
V., who was 20 years old at the time of trial, and M., who was 18, both testified that they had happy memories of their time with Aguilar. V. would have said as a child that Aguilar "was a fun uncle," and she remembered being "excited" to see him during school breaks. M. testified that Aguilar was "really friendly" and often played with the children. Aguilar's defense consisted primarily of testimony from witnesses, including his parents and A., that they never saw him behave inappropriately with children and that his nieces and nephews loved to be around him.
B. Aguilar's Abuse of V.
1. The acts.
V.'s testimony provided the basis for several counts against Aguilar, all alleged to have occurred around 2008, when she was 10 years old. On the first occasion, Aguilar and A. were visiting V.'s family at V.'s father's apartment. Aguilar took V. into the bathroom "[a]s if [he had] something to tell [her]." V. testified that after Aguilar closed the door, "[h]e took out his penis," which had "a clear substance" coming out of it, "and he said it was candy. And he asked [her] to suck his penis, and [she] said 'No,' and . . . ran out." Later during the same visit, Aguilar came into V.'s room, closed the door, and again asked her "to suck his penis." After he "kept bothering" her, she finally did so.
V.'s parents divorced in 2004, but they remarried in 2009.
On another occasion, V. was playing with Aguilar in her room at her father's apartment. Aguilar had on an oversized shirt and was making her laugh by putting it over her head. V. testified that Aguilar then "grabbed [her] hips, . . . and he started humping [her] from behind" so that she could feel "[h]is genital area against [her] butt."
On a third occasion, V. was playing with Aguilar in the Daly City apartment. She testified that Aguilar "was spinning [her] around, and when he was done spinning [her], he grabbed [her] by the hips and humped [her] from behind." Again, she could feel "[h]is genital area."
During the fourth incident, V. was in a bedroom in the Daly City apartment when Aguilar "pulled [her] in for a kiss." V. testified that Aguilar "went down to [her] chest and pulled down [her] shirt a little" and sucked on her nipple. V. also recalled a time when Aguilar kissed her on the mouth in the apartment's bathroom, the fifth incident.
Finally, V. also testified that Aguilar orally copulated her one night when the two of them went to visit his mother in San Francisco. After he parked outside his mother's house, Aguilar asked if he could lick V.'s "va-jay-jay," which she understood to mean her vagina. She recalled that she lay against the passenger seat of his truck while he leaned over and put his mouth on her vagina. V. testified that after a short time, they went inside the house, and she "acted as if everything was normal."
2. V.'s disclosure.
In the spring of 2009, when V. was 11 years old and in fifth grade, she watched a video as part of her "Adolescent Growth Education" class. She testified that the video, which showed a boy who was inappropriately touched while roughhousing with his relatives, prompted her to tell a few of her friends that Aguilar had sexually abused her. She worried that she "would get in trouble" and her family would react badly if she reported Aguilar, who had told her to keep the abuse a secret. Yet the boy in the video "thought he would get in trouble, too. But he told, and he didn't get in trouble." V.'s friends told a teacher about the disclosure, and the teacher reported it to the police.
In early June 2009, V.'s parents learned that their daughter had accused Aguilar of molesting her. V.'s mother testified that she had not noticed any changes in V.'s behavior while the molestation was occurring, with one exception. On that occasion, V. was supposed to visit her family in the Bay Area, and she "clung on to [her mother]" and told her she was "scared." Her mother told V. she could stay home, but V.'s brother convinced her to go.
V.'s father testified that he was "frigging shocked" by V.'s disclosure, because he had never witnessed any strange behavior between Aguilar and V. V.'s father did, however, describe an incident involving Aguilar and V.'s older brother, who was about 11 or 12 years old at the time. V.'s father found an unmarked case in his apartment that contained a movie disc with a picture of "a woman, like, in latex, . . . just some, you know, bizarre stuff." V.'s brother said that Aguilar had given it to him. V.'s father confronted Aguilar, who apologized. V.'s father was "pissed" and told Aguilar to "keep this stuff . . . away from the kids," but he did not mention the incident to A. because he did not want to cause problems.
V.'s brother corroborated his father's account of this incident. He also testified that Aguilar repeatedly showed him pornography involving sexual activity between adults when he was a preteen: "He would show videos. He would show movies, magazines, Internet, DVDs, that kind of exposure." This normally occurred in A.'s room in the Daly City apartment, where there was a computer and TV. V.'s brother denied that Aguilar ever touched him sexually, and he did not witness any inappropriate touching of his sisters.
After V.'s disclosure, Aguilar and the other Northern California family members stopped talking to V.'s family. V. testified that she felt "sad, 'cause [she] lost [her] family." Her father testified that it was like he "lost a sister" and his immediate family was "just all on [its] own."
C. Aguilar's Abuse of M.
1. The acts.
M. testified that from the time she was in kindergarten, around 2005, to the time she was in third grade, around 2008, she regularly visited Aguilar and A. in Daly City. On several occasions during these years, while she was in the bedroom watching TV, Aguilar would come in and close the door most of the way. In M.'s words, "He would grab my ankles and pull me towards the edge of the bed. He would pull down my pants and hold up my legs and take out his penis and put it in my vagina." Sometimes, he also "put his penis in [her] vaginal area from behind," while she was on her hands and knees. She later clarified that although she could not remember whether Aguilar actually penetrated her vagina "hole," he would "rub his penis on [her] inner thighs and legs" and put it between her vagina's lips.
2. The effect of V.'s disclosure on M.
M.'s mother testified that after she learned of V.'s disclosure in June 2009, she became concerned about M. On the advice of a therapist at M.'s school, M.'s mother asked M. in general terms whether she had been touched inappropriately. M., who was nine years old at the time, said she had not. At trial, M. explained by saying, "I didn't know it was wrong. I didn't know what sex was . . . [or that] it could happen [non]consensually."
After V.'s disclosure, Aguilar was arrested, and he was gone for about a year. Meanwhile, in July 2009, A. gave birth to twin girls. When Aguilar returned in 2010, his family had moved to Pacifica. The jury was shown a recording of M. excitedly running up to him and hugging him upon his return.
It appears from the record that Aguilar was jailed and then released after being tried on charges involving V., but this information was not presented to the jury.
After Aguilar came back, M. continued to visit him and his family, although almost always with her mother present. M.'s mother testified that M. was always excited to go to the Pacifica house, because "[s]he liked going to see her aunt and the babies." M. agreed that she enjoyed going to Pacifica to play with her younger cousins, and she testified that after his return Aguilar never abused her again.
A few years after V.'s disclosure, when M. was in middle school, she began wondering why she no longer had contact with V.'s family. She explained, "When [Aguilar] went away and my cousins went away, I knew something must have happened in the family, and knowing what had been done to me, I kind of figured it had happened to . . . [V.] as well." No one actually told her that V. had been sexually abused, however, until after M. disclosed her own abuse, and she and V. never talked to each other about what Aguilar did to them.
3. M.'s disclosure.
In early 2015, when M. was 15 years old, her mother dropped her off in Los Angeles to stay with an older cousin from the other side of the family. While M. and her cousin were watching a movie that depicted sexual violence, the cousin noticed that M. "was kind of freaking out." M.'s cousin, with whom M. was very close, paused the movie, and M. "broke down" and said she had been sexually abused by Aguilar. The cousin testified that M. "couldn't compose herself" while they were talking and expressed fear that her story would not be believed. After hearing what Aguilar had done, M.'s cousin called M.'s mother.
M.'s parents both testified that they never saw Aguilar acting inappropriately with M. M.'s father, a law enforcement officer, had not thought that Aguilar "was the type of person who would sexually molest a child." M.'s father described an occasion when M. did not want to go on a planned vacation with A. and Aguilar, but he "didn't think nothing of it, just her being a kid." After M.'s disclosure, her family also cut off contact with A. and Aguilar.
M. testified that she had not disclosed Aguilar's abuse earlier because she did not want to break up her family, explaining, "[I]t sucks when you're young and your family just goes away, and I was really sad about that, and I knew that if I disclosed it, it would just be the repeat of what happened, but with . . . more cousins, like, I would see [Aguilar] and [A.'s] children all the time, and it would be the same thing for them. . . . And it's just a repeated cycle." At the same time, as the two girls reached school age she "just saw [herself] in them," and she worried that Aguilar might abuse them as well.
D. The Verdicts and Sentencing.
As to V., Aguilar was charged with two counts of oral copulation of a child 10 years of age or younger and six counts of lewd acts upon a child under 14 years of age, one of which was charged as a lesser included offense of one of the oral-copulation counts. As to M., he was charged with two counts of sexual intercourse with a child 10 years of age or younger, two counts of lewd acts upon a child under 14 years of age as lesser included offenses of the first two counts, and one count of exhibiting harmful material to a minor. After the close of evidence, the trial court granted Aguilar's unopposed motion for a judgment of acquittal as to the count of exhibiting harmful material to M., on statute-of-limitations grounds, and one of the counts of lewd acts upon V., on grounds of insufficient evidence. The court also granted the prosecution's motion to dismiss both counts of sexual intercourse with M., leaving the lesser included offenses of lewd acts associated with those charges.
These charges were brought under Penal Code sections 288.7, subdivision (b) (oral copulation) and 288, subdivision (a) (lewd acts). All further statutory references are to the Penal Code unless otherwise noted.
These charges were brought under sections 288.7, subdivision (a) (sexual intercourse), 288, subdivision (a) (lewd acts), and 288.2, subdivision (a) (exhibiting harmful material). The latter charge was based on M.'s testimony that Aguilar once showed her a pornographic movie.
The jury acquitted Aguilar of the count of oral copulation of V. in San Francisco but convicted him of the associated lesser included offense. It also convicted him of the remaining counts, including the count of oral copulation of V. in San Diego County, and found true the allegations attached to the seven lewd-acts counts that Aguilar committed the same offense against more than one victim. The trial court sentenced him to a total term of 45 years to life in prison, composed of a term of 15 years to life for one of the convictions of lewd acts upon M., two consecutive terms of 15 years to life for two of the convictions of lewd acts upon V., and five concurrent terms of 15 years to life for the remaining convictions.
The former charge required a finding that V. was 10 years old or younger at the time, whereas the latter required a finding that she was under 14 years old. (See §§ 288, subd. (a), 288.7, subd. (b).) The information alleged that the San Francisco incident happened when V. was 10, but she testified that she was actually 11 at the time.
These allegations were found true under section 667.61, subdivisions (b) and (e).
II.
DISCUSSION
A. CALCRIM No. 1193 Does Not Reduce the Prosecution's Burden of Proof.
Aguilar claims that his convictions must be reversed because the jury was instructed under CALCRIM No. 1193, which violated his due process rights by reducing the prosecution's burden of proof. We are not persuaded.
1. Additional facts.
At trial, Miriam Wolf, a licensed clinical social worker and the director of the forensic interviewing program at San Mateo County's center for interviewing child victims, provided expert testimony on CSAAS. CSAAS, which was developed with the intent to "dispel myths that adults h[o]ld about how children might respond to child sexual abuse," has five components: (1) secrecy, which refers to the facts that child sexual abuse generally occurs without other people present and the perpetrator conveys to the child that it needs to remain secret; (2) helplessness, which refers to the power imbalance between the perpetrator and the child, as well as the child's reluctance to seek help from other adults because of the emphasis on secrecy; (3) entrapment and accommodation, which involves the child's feeling of being trapped in the situation and resulting efforts to cope; (4) delayed, conflicted, and unconvincing disclosure, which refers to the fact that the child may not disclose the abuse until well after it happens and may do so in a piecemeal manner; and (5) retraction, which refers to the likelihood that the child will "take back" the accusation at some point.
Wolf emphasized that CSAAS "cannot be used to diagnose whether a child has been sexually abused or not," explaining that CSAAS's components are "not witness tests for truth telling. They're intended to help people who listen to children's reports appreciate features of children's reports that seem puzzling and counter-intuitive, and [the tool] assumes that those are true reports." She also confirmed that she was not "here to make any kind of specific diagnosis or espouse an opinion as to what factually occurred in this particular case."
The jury was instructed under CALCRIM No. 1193, without any objection from Aguilar, as follows:
"You have heard testimony from Miriam Wolf regarding child sexual abuse accommodation syndrome.
"Miriam Wolf's testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against him.
"You may consider this evidence only in deciding whether or not [M.'s] and [V.'s] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of their testimony."
2. Discussion.
Expert testimony about CSAAS is inadmissible on the issue whether a particular child was actually sexually abused, but it is admissible "to disabuse jurors of commonly held misconceptions of child sexual abuse and the abused child's seemingly self-impeaching behavior." (People v. Gonzales (2017) 16 Cal.App.5th 494, 503 (Gonzales).) In particular, it "is admissible to rehabilitate [a complaining] witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation." (People v. McAlpin (1991) 53 Cal.3d 1289, 1300.) We independently review whether a challenged jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
According to Aguilar, CALCRIM No. 1193 "not only does not adequately explain these principles" governing the proper use of CSAAS testimony, "it effectively instructs the jury that [it] may take such testimony as evidence of the defendant's guilt." He reasons that this is so because permitting the jury to consider such testimony in evaluating the "believability" of a victim's testimony, which is usually "the crux of the prosecutor's case," is akin to authorizing the jury to rely on CSAAS testimony to conclude the defendant is guilty of the charges.
The Second District Court of Appeal rejected a similar argument in Gonzales, a decision Aguilar does not even cite. There, the defendant claimed that "the misleading language of CALCRIM No. 1193 allowed the CSAAS testimony to be used as proof that [the victim] was molested," because "[i]t [was] impossible to use [that] testimony to evaluate the believability of [the victim's] testimony without using it as proof that [the defendant] committed the charged crimes." (Gonzales, supra, 16 Cal.App.5th at p. 503.) The Court of Appeal disagreed, emphasizing that "the instruction must be understood in the context of [the expert's] testimony" that "CSAAS is not a tool to help diagnose whether a child has actually been abused" but instead is meant to explain children's "reactions when they have been abused." (Id. at pp. 503-504.) Thus, a reasonable juror could rely on CSAAS testimony to conclude the victim's "behavior [did] not mean she lied when she said she was abused," thus "neutraliz[ing] the victim's apparently self-impeaching behavior," without also relying on that testimony as evidence that the victim was actually molested. (Id. at p. 504.) Aguilar offers us no reason not to follow Gonzales, with whose reasoning we agree. Thus, we conclude that the trial court did not err by giving CALCRIM No. 1193.
Moreover, even if the version of CALCRIM No. 1193 given was legally incorrect in some respect, the error was harmless under any standard. Both V. and M. gave detailed testimony the trial court found to be "quite compelling," stating, "[H]aving sat here next to [V.] and having sat her[e] next to [M.], I don't just listen to what people are saying. I look at them, body language, facial expressions, what they're doing with their eyes, their hands. That says a lot about one's credibility and [the] sincerity with which one is speaking. [¶] They were telling the truth. I believe them." In addition, M. came forward without being told V. had also accused Aguilar, both M. and V. denied having spoken to each other about Aguilar's conduct, and there was no evidence of any collusion between them. Nor did V. or M. have any apparent motive to lie, as they both liked Aguilar and their disclosures tore the family apart. Although Aguilar characterizes this as "a very close 'he said, she said' case," we agree with the Attorney General that this was more like a " 'they said, no one said' case where two witnesses said abuse occurred and no one testified that it had not." In short, any error in the giving of CALCRIM No. 1193 did not prejudice Aguilar.
B. Aguilar Fails to Establish that His Sentence Is Grossly Disproportionate to His Crimes.
Aguilar contends that his sentence of 45 years to life constitutes cruel and/or unusual punishment in violation of the state and federal Constitutions. We reject this claim.
While the Eighth Amendment to the federal Constitution " 'prohibits the infliction of "cruel and unusual" punishment,' " article I, section 17 of the state Constitution " 'prohibits infliction of "[c]ruel or unusual" punishment. . . . The distinction in wording is "purposeful and substantive rather than merely semantic[,]" . . . [so] we construe the state constitutional provision "separately from its counterpart in the federal Constitution." ' " (People v. Baker (2018) 20 Cal.App.5th 711, 723 (Baker).) In analyzing both provisions, however, our basic task is to determine "whether a particular penalty given ' "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." ' " (People v. Cole (2004) 33 Cal.4th 1158, 1235; Baker, at p. 733.) Where, as here, there are no " 'underlying disputed facts,' " whether a sentence constitutes cruel or unusual punishment is a question of law reviewed de novo. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.)
"We . . . use a three-pronged approach to determine whether a particular sentence is grossly disproportionate." (People v. Johnson (2010) 183 Cal.App.4th 253, 296.) "First, we review 'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.' " (Ibid.) This analysis requires consideration of " 'the circumstances of the offense, including the defendant's motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts,' " as well as " 'the defendant's age, prior criminality[,] and mental capabilities.' " (People v. Cole, supra, 33 Cal.4th at p. 1235.) "Second, we compare the challenged punishment with punishments prescribed for more serious crimes in our jurisdiction. [Citation.] Third, and finally, we compare the challenged punishment to the punishments for the same offense in other jurisdictions. [Citation.] The importance of each of these prongs depends upon the facts of each specific case[, and] . . . we may base our decision on the first prong alone." (Johnson, at pp. 296-297.)
To begin with, we agree with the Attorney General that the issue is forfeited because Aguilar failed to raise it below. (Baker, supra, 20 Cal.App.5th at p. 720; People v. Johnson (2013) 221 Cal.App.4th 623, 636.) Nevertheless, we will "address the merits 'to show counsel was not constitutionally ineffective by failing to make a futile or meritless objection.' " (Baker, at p. 720.)
A defendant seeking to overturn a sentence as cruel and/or unusual faces a considerable burden. "The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment." (People v. Wingo (1975) 14 Cal.3d 169, 174.) Thus, " '[o]nly in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive.' " (Baker, supra, 20 Cal.App.5th at p. 724.)
Aguilar was sentenced under section 667.61, the One Strike law, which requires a 15-years-to-life sentence for certain crimes that warrant more severe punishment when committed under one of a set of specified circumstances. (§ 667.61, subds. (b), (c), (e); see People v. Murphy (1998) 65 Cal.App.4th 35, 41.) Here, Aguilar's convictions for lewd acts qualified because the jury found that he had "been convicted in the present case . . . of committing [the offense of lewd acts] against more than one victim." (§ 667.61, subds. (c)(8), (e)(4).)
Aguilar argues that because he was 44 years old when he was sentenced, his sentence amounts to a de facto sentence of life without the possibility of parole, since "there is no way he can possibly hope to complete the sentence in his lifetime." Citing a dissent and a concurrence by Justice Mosk, Aguilar claims such de facto life sentences " 'make[] a mockery of the law and amount[] to cruel and unusual punishment.' " (Quoting People v. Hicks (1993) 6 Cal.4th 784, 797 (dis. opn. of Mosk, J.); see People v. Deloza (1998) 18 Cal.4th 585, 600-601 (conc. opn. of Mosk, J.).) Aside from his age, however, Aguilar does not identify any aspects of his crimes or his personal characteristics that demonstrate gross disproportionality.
As the Third District Court of Appeal has observed in rejecting similar arguments involving Justice Mosk's stance on the issue, " ' "no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.]" [Citations.] Because no other justice on our Supreme Court joined in Justice Mosk's concurring opinion [in Deloza], it has no precedential value." (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231, quoting People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.) In addition to Retanan, which also involved sexual abuse of multiple child victims (Retanan, at p. 1231), other opinions have rejected challenges to similarly long sentences imposed under section 667.61. (E.g., People v. Reyes (2016) 246 Cal.App.4th 62, 68-69, 82 [sentence of life without the possibility of parole for convictions of forcible oral copulation and lewd acts upon a child under 14 committed during burglary]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1278, 1282 [25-years-to-life sentence for forcible rape during burglary committed when defendant was 38]; cf. People v. Cadena (2019) 39 Cal.App.5th 176, 179-180, 189 [30-years-to-life sentence for "over-the-clothes" touching of 11- and 12-year-old girls constituted cruel or unusual punishment].) Aguilar fails to demonstrate that this is one of the rare cases in which the sentence mandated by the Legislature is unconstitutional.
Finally, Aguilar also claims it violates due process to impose "a life without the possibility of parole sentence under another name, accomplished by an end run around the procedural and substantive requirements of section 190.2," which lists the special circumstances justifying such a sentence for first degree murder. He cites no authority that supports this proposition, however, and we reject it.
C. Certain Sentencing-related Errors Require Correction.
The trial court sentenced Aguilar to consecutive terms of 15 years to life on three of his convictions, for a total term of 45 years to life, and concurrent terms of 15 years to life on the remaining five convictions. As the Attorney General points out, the sentencing minute order incorrectly reflects that all the terms were consecutive. In addition, while the abstract of judgment correctly notes that five of the terms were concurrent, it also reflects that each term was 45 years to life, not 15 years to life. These errors must be corrected.
The trial court also imposed assessments under section 1465.8, which requires a $40 assessment per conviction, and Government Code section 70373, which requires a $30 assessment per conviction. The court recognized that these assessments amounted to "$40.00 per count" and "$30.00 per count" respectively. But it multiplied by nine, instead of eight, to impose at a total of $360 under section 1465.8 and a total of $270 under Government Code section 70373. Since Aguilar had eight convictions, not nine, a total of $70 in assessments must be stricken.
III.
DISPOSITION
The judgment is modified to strike $40 in assessments under Penal Code section 1465.8 and $30 in assessments under Government Code section 70373. The judgment is affirmed as modified. The trial court is directed to amend the abstract of judgment to reflect that terms of 15 years to life, not 45 years to life, were imposed on each of Aguilar's convictions, as well as to reflect the reduction in assessments, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. The court is also directed to correct the June 22, 2018 minute order to reflect that concurrent terms were imposed for five of the convictions.
/s/_________
Humes, P.J. WE CONCUR: /s/_________
Banke, J. /s/_________
Sanchez, J.