Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. EE605025
McAdams, J.
A jury convicted defendant Leroy Joseph Etienne of carjacking and second degree robbery. (Pen. Code §§ 215; 211, 212.5, subd. (c).) The court sentenced defendant to state prison for five years for the carjacking. The court stayed a concurrent term of three years for the robbery pursuant to section 654. The court also imposed restitution and parole revocation fines of $1,600 pursuant to sections 1202.4 and 1202.45.
Unless otherwise indicated, all subsequent statutory references are to the Penal Code.
On appeal, defendant contends: (1) the trial court had a sua sponte duty to instruct the jury that the “fear” inspired by a robber in the victim must be reasonable under the circumstances, and that the court’s failure to so instruct violated due process; (2) the trial court had a sua sponte duty to instruct the jury that it could consider defendant’s return of property on the question of whether he had the larcenous intent required for robbery and carjacking; (3) alternatively, that defense counsel rendered ineffective assistance of counsel by failing to request a pinpoint instruction on that point, in derogation of his due process rights; and (4) the court erroneously calculated the restitution and parole revocation fines, requiring the reduction of those fines to $1,000. We agree with defendant’s final claim only; therefore, we will modify the judgment to reflect fines in the amount of $1,000 and, as modified, we will affirm.
STATEMENT OF FACTS
On March 25, 2006, between 12:30 and 1:00 p.m., Sergio Guadarrama parked his 2000 Cadillac Escalade in the parking lot in front of his apartment building and was stepping out of his car when a man subsequently identified as defendant approached Guadarrama from behind and said in English either “I want” or “I need” “your money,” and “I want” or “I need” “your truck.” He added: “No call for the police please.” Guadarrama is Spanish-speaking. He estimated that he speaks “about 50 per cent” English and understands “about 70 per cent.”
Defendant had his hand wrapped in an army jacket, and he placed that hand against Guadarrama’s right side. Although Guadarrama did not see an object in defendant’s hand, he felt something that was “not fingers.”
Defendant turned Guaderrama towards his car and grabbed the car keys from his right hand. Guaderrama was scared for his personal safety; he feared defendant had a weapon. Defendant told Guaderrama not to move and then climbed into the car. Guaderrama was frightened and ran home to his apartment. He looked back and saw that defendant had taken the car out of the apartment parking lot.
At home, Guaderrama told his girlfriend, Claudia Nava, that “someone was stealing my truck” and to call the police. Nava had never seen Guaderrama so scared. She called 911 and reported that someone was stealing their car. She went outside when the operator asked her where the car was going and who was driving it, leaving Guaderrama inside to care for their baby. Once outside, cell phone in hand, Nava could see defendant driving the car about 40 feet away. She yelled at him to “come back, get off the truck.” Defendant made a U-turn and returned to the apartment building, parking the car about 50 feet from Nava. Defendant got out of the car and walked toward Nava and Guadarrama, who had come outside with the child. From about 20 feet away from them, defendant said, “I didn’t do anything” and threw the car keys towards them.
In the meantime, numerous police officers had arrived in response to Nava’s call. Sunnyvale Police Officer Joel Witmer arrived in time to see defendant, wearing a camouflage jacket, throw some keys towards a small group of people gathered on the sidewalk. He arrested and searched defendant, finding a red Swiss Army knife in a plastic bag in defendant’s jacket pocket. Defendant had $14.99 on him when he was arrested.
Defendant testified in his own behalf. Before an injury ended his football career in the early 1990’s, he was an inside linebacker for the San Francisco 49ers. He had lived in Sunnyvale on and off for 10 or 15 years. On March 25, 2006, he was waiting to catch a bus when he saw Guadarrama park his car in the parking lot. He decided to ask Guaderrama for a ride. He said in a “very, very cordial” manner, “Sir, I would like to have a ride.” He even offered Guadarrama money to buy gas. At the time, he thought Guaderrama understood him, but in retrospect “it doesn’t seem like he truly did.”
Defendant slipped a $20 bill into Guadarrama’s sweatshirt pocket. In response, Guaderrama extended his arm and placed the car keys against defendant’s chest. Defendant thought it was odd, but he “grabbed” the keys and held them against his chest with the palm of his hand and looked at Guadarrama. Guadarrama left. Defendant thought he would come back and waited two to three minutes for Guadarrama to return. Next, he went to the car, sat in the driver’s seat and turned on the ignition so he could listen to music. Then, defendant made a “childish mistake”: he proceeded to drive the car into the street. He was about to make a U-turn to park the car when he saw someone (Ms. Nava) talking on a cell phone and yelling at him to bring the truck back. Defendant said: “I’m bringing the car back right now, sure. No problem.” He parked the car about 20 feet away from the apartment building. He got out of the car and was trying to ask Ms. Nava what was going on, what was the problem, but she wouldn’t have anything to do with him. She said she had called the police; defendant replied: “If you did that, well I guess I’m going to have to sit here until they get here and get this resolved.” When the police arrived three or four minutes later, defendant said “Here’s your keys.” However, they wouldn’t reach for the keys so defendant dropped them on the ground. Defendant claimed he was wearing the camouflage jacket when he was interacting with Guadarrama. He denied he had the knife in his hand when he was speaking with Guadarrama.
Officer James Boone testified that he interviewed Guadarrama on the street in front of the apartment building, using Nava as an interpreter. Guadarrama said defendant approached him from the front, not from behind and poked him in his left side, not his right. He did not say defendant grabbed his keys.
In rebuttal, Officer Witmer testified that when he interviewed defendant at the police station, defendant did not say that he had taken a bus the location where he interacted with Guadarrama or that he wanted a ride to go see his girlfriend that day, as defendant testified at trial.
DISCUSSION
Instructional Error
Defendant contends the trial court erred in failing to instruct on certain principles of law applicable to his case. “We conduct independent review of issues pertaining to instructions.” (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.)
1. Fear
Section 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” The trial court gave the standard instructions on the elements of robbery and carjacking contained in Judicial Council of California Criminal Jury Instructions (2006), CALCRIM nos. 1600 and 1650. Defendant contends that the trial court erred in failing to modify these standard instruction sua sponte. He asserts that the trial court should have altered the definition of fear by instructing the jury that it had to find the robbery victim’s fear was not only actual but also objectively reasonable.
“The general rules regarding a trial court’s obligation to instruct the jury sua sponte in a criminal case are well established. ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” ’ ” (People v. Freeman (1978) 22 Cal.3d 434, 437.) Furthermore, the law is settled that the fear element of robbery has no technical meaning that must be explained to the jury. (People v. Anderson (1966) 64 Cal.2d 633, 639.)
Defendant contends, in effect, that it is a general principle of law, on which the court was required to instruct sua sponte in this case, that the “fear” required for robbery and carjacking has an objective reasonableness component. He finds current support for this view in People v. Iniguez (1994) 7 Cal.4th 847, a rape case which held that the element of fear of immediate and unlawful bodily injury has two components, one subjective and one objective. “The subjective component asks whether a victim genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will. In order to satisfy this component, the extent or seriousness of the injury feared is immaterial. [Citations.] [¶] In addition, the prosecution must satisfy the objective component, which asks whether the victim’s fear was reasonable under the circumstances, or, if unreasonable, whether the perpetrator knew of the victim’s subjective fear and took advantage of it.” (Iniguez, supra, 7 Cal.4th at pp. 856-857.) Defendant posits that given the similarity of language with respect to fear in the rape, robbery and carjacking statutes, the definition of fear for all three statutes must be the same. In support of this conclusion he argues that Iniguez cited robbery cases in support of its analysis. (Ibid.) We disagree.
In the Iniguez case, the Court of Appeal had reversed a conviction for forcible rape on the grounds that there was insufficient evidence of fear because the victim was unable to articulate an experience of fear of immediate and unlawful bodily harm. The California Supreme Court disagreed and reversed the Court of Appeal, concluding that “the prosecution was not required to elicit from [the victim] testimony regarding what precisely she feared. ‘Fear’ may be inferred from the circumstances despite even superficially contrary testimony of the victim. (See People v. Renteria (1964) 61 Cal.2d 497, 499 [in robbery prosecution, People not bound by clerk’s testimony that he was not in fear, since there was other evidence to support conclusion ‘that he acted in fear and would not have disgorged the contents of his employer’s till except in fear of the harm which might come to him or his employer if he failed to comply with defendant’s demands’]; People v. Borra (1932) 123 Cal.App. 482, 484-485 [not necessary that there be proof of actual fear, as fear may be presumed where there is just cause for it, and thus ‘In spite of the bravado of the merchant in declaring that he was not much afraid, we are inclined to believe he meant he was not afraid of receiving bodily harm so long as he complied with the demands of the robber’]; see also People v. Brew (1991) 2 Cal.App.4th 99, 104 [cashier in retail store robbed when defendant, considerably larger than she, with alcohol on his breath, stood close to her, without barrier or counter between them, causing cashier to step back from cash register drawer in fear]; People v. Franklin (1962) 200 Cal.App.2d 797, 798 [although no testimony by checker that she handed over money because she was afraid, evidence sufficient to show that taking was by means of force or fear].)” (Iniguez, supra, 7 Cal.4th at p. 857, italics added.)
The robbery cases on which defendant relies were cited by our Supreme Court solely for the unassailable proposition, highlighted above, that fear may be inferred from the circumstances even despite the superficially contrary testimony of the victim. “[W]hen the prosecution seeks to prove a robbery was committed by means of fear, it must present evidence ‘from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.’ [Citation.] Actual fear may be inferred from the circumstances, and need not be testified to explicitly by the victim.” (People v. Cuevas (2001) 89 Cal.App.4th 689, 698.) However, none of the robbery cases cited by the Iniguez court held, or even implied, that the fear required for robbery has an objective component which must be proven, in addition to actual fear.
Thus, in People v. Renteria, supra, 61 Cal.2d 497, the issue was whether there was substantial evidence to support a robbery conviction involving a defendant who entered a liquor store and demanded money, gun in hand. (Id. at p. 498.) At trial the clerk was asked if he feared that the defendant would use the gun. He replied that he did not have any fear of him. (Ibid.) The Supreme Court held that the People were not “bound” by the clerk’s testimony that he was not in fear, “since there is other evidence which will support the conclusion that he acted in fear and would not have disgorged the contents of his employer’s till except in fear of the harm which might come to him or his employer if he failed to comply with defendant’s demands.” (Id. at p. 499.) The court went on, “[i]t is not reasonable to suppose that … the clerk would have given the employer’s money to an unauthorized stranger who demanded possession at the point of a gun, had the clerk not been in fear that the injury to himself or his employer would result if he failed to comply with the demand.” (Ibid., fn. omitted, italics added.)
Borra and Franklin are similar to Renteria. Again, the issue in both cases was whether there was sufficient evidence to support a finding of fear where the victims either testified that they were not afraid (Borra) or did not affirmatively testify that they were afraid (Franklin ) when they surrendered their money at gunpoint. The Borra court cited secondary authority for the proposition that even in the absence of proof of actual fear, such fear may be reasonably inferred from all the circumstances of the offense. (People v Borra, supra, 123 Cal.App. at pp. 484-485.) In Brew, the court found sufficient evidence of fear and intimidation where the defendant made no express threats and wielded no weapons, but the victim testified that she was actually “scared” and the circumstances surrounding the taking were reasonably calculated to produce fear. (People v. Brew, supra, 2 Cal.App.4th at p. 104.)
Based on the foregoing authorities, we are not persuaded by defendant’s argument that “the prosecution must prove, beyond a reasonable doubt, that the conduct of the defendant caused the victim to incur actual fear of injury to himself or a family member, and that such fear is either that which a reasonable person would suffer under the same circumstances, or alternatively, if the fear is not reasonable, that the defendant ‘knew of the victim’s subjective fear and took advantage of it.’ ” (Italics added.) In our view, such is not a general principle of law governing this robbery case, where the victim testified in no uncertain terms that he was, in fact, actually afraid that defendant had a weapon and would harm him. Therefore, the court had no sua sponte duty to so instruct.
2. Return of Property
The trial court instructed the jury, pursuant to CALCRIM no. 1862, as follows: “If you conclude that the People have proved that the defendant committed carjacking and/or robbery, the return or offer to return all of the property wrongfully obtained is not a defense to that charge.” Relying on People v. Edwards (1992) 8 Cal.App.4th 1092 (Edwards), defendant argues that the trial court had a sua sponte duty to modify this instruction “along the lines suggested by the court in Edwards.” Edwards involved the embezzlement of an elderly parishioner’s property by the parishioner’s parson. The defendant was prevented from presenting evidence that after he transferred the title to the elderly man’s house, and $29,000 in cash, to himself, the defendant made improvements to the house and returned some of the money. Although his defense was that the elderly parishioner gifted the title and cash to him, defendant argued that his later improvements and partial return of cash were not offered to show that defendant had made restitution, but rather to show that his intent at the time of the transfers was not larcenous. The Court of Appeal held that the evidence should have been admitted on this theory, but that the error was harmless because “these actions did little, if anything, to support defendant’s defense that he had a nonlarcenous intent. The defense from the outset was that the transactions were gifts given without qualifications. Under defendant’s theory of gift, he would have no duty to return the property. … Also, the evidence was potentially harmful to defendant because its admission would have allowed the People to argue that defendant gave [the victim] money and improved the home in order to keep [the victim] quiet so he could carry out his scheme to keep the real property and use the bulk of the money for his own purposes.” (Edwards, at p. 1101.)
Edwards did not involve an instructional issue or hypothesize an instructional modification of the general rule embodied in CALCRIM no. 1862. Nevertheless, defendant proposes that CALCRIM no. 1862 could have been modified to include the following language, culled from Edwards: “However, the fact that the defendant returned all of the property is a circumstance to consider in evaluating whether the prosecution has proven that defendant had the specific intent to temporarily or permanently deprive the owner of possession of property and whether the prosecution has proven that the taking was accomplished by means of force or fear.”
Robbery requires the specific intent to permanently deprive the victim of his or her property. (People v. Morales (2003) 112 Cal.App.4th 1176, 1188.) “ ‘[I]ntent is inherently difficult to prove by direct evidence. Therefore, the act itself, together with its surrounding circumstances must generally form the basis from which the intent of the actor may legitimately be inferred.’ ” (Edwards, supra, 8 Cal.App.4th at p. 1099.) Edwards manifestly does not stand for the proposition that a defendant charged with robbery or carjacking is entitled to an instruction directing the jury to consider the defendant’s return of property as bearing on his lack of intent, much less to the instruction defendant proposes on appeal. Defendant was entitled to proper instructions on the intent required for robbery and carjacking, and such were given in this case. In our view, the instructions on intent, as given, were complete. They were not misleading or erroneous. Defendant does not explain, and we fail to see, how the return of property could have any bearing on the question whether the taking was accomplished by force or fear.
Assuming defendant was arguably entitled, under Edwards, to present evidence that he returned the property, such evidence was presented, and he was free to argue that his return of the car keys and the car tended to support his defense that he took the property without larcenous intent. In fact, he did argue that defendant’s actions – driving slowly, turning around and coming back, parallel parking the car at the curb – were inconsistent with criminal activity. However, assuming arguendo that the principle defendant draws from Edwards is applicable to a taking accomplished by force or fear – a proposition we need not and do not decide – in our view it is not a general principle of law but rather an instruction relating “peculiar facts to the elements of the offense charged,” on which “the court does not have a sua sponte duty to instruct.” (People v. Ryan (1999) 76 Cal.App.4th 1304, 1318, internal quotations marks omitted.) And, “[a]s to pertinent matters falling outside the definition of a general principle of law governing the case, it is the defendant’s obligation to request any clarifying or amplifying instruction.” (Ibid., internal quotation marks omitted.)
Anticipating this conclusion, defendant argues that counsel was ineffective for failing to request such an instruction. We disagree.
In order to prevail on a claim of ineffective assistance of counsel, defendant must show both that counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate and that defendant was prejudiced thereby. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217; Strickland v. Washington (1984) 466 U.S. 668, 684 (Strickland).) In other words, even if counsel’s actions fall below the threshold of reasonableness, defendant must still demonstrate that counsel’s actions were prejudicial. (People v. Ledesma, at p. 218.) Therefore, we “ ‘need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. … If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice … that course should be followed.’ ” (In re Jackson (1992) 3 Cal.4th 578, 604, quoting Strickland, at p. 697, disapproved of on other grounds in In re Sassounian (1995) 9 Cal.4th 535.) A defendant establishes prejudice by demonstrating that without the deficient performance there is a reasonable probability the result would have been more favorable. A defendant must prove prejudice that is a “ ‘demonstrable reality,’ not simply speculation.” (People v. Williams (1988) 44 Cal.3d 883, 937; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Finally, our Supreme Court has “repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] ... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Here, defendant’s theory of the case, as embodied in the mistake of fact instructions given by the court, and in defense counsel’s closing argument, was that defendant reasonably but mistakenly believed that “he had the consent of the owner to possess the vehicle and keys” and therefore “did not have the specific intent required for car jacking or robbery.” The jury was also instructed: “The defendant is not guilty of car jacking or robbery if he did not have the intent required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed a fact. If the defendant’s conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit car jacking or robbery.” Finally, the jury was instructed that “if you have a reasonable doubt about whether the defendant had the specific intent required for car jacking and robbery, you must find him not guilty of those crimes.”
Here, defense counsel’s choice of instructions and argument suggests that counsel was acting in a manner to be expected of a reasonably competent and diligent advocate. The appellate record sheds no light on why defense counsel failed to request the pinpoint instruction that appellate counsel thinks she should have asked for, and defense counsel was never asked to explain her actions. On the other hand, the record does suggest a reason why defense counsel might not have wanted to focus the jury’s attention too much on facts that would cause it to reflect backwards on defendant’s testimony as to his intent at the time he decided to take and drive the car. Defendant’s explanation for making that “silly” decision – that he made a “childish mistake” – did not suggest a lack of larcenous intent. Defense counsel may have concluded that the instruction defendant now proposes may have undermined, rather than supported, his primary defense of mistake of fact, by drawing the jury’s attention away from the possible language misunderstanding that led the victim to thrust the keys at defendant’s chest and leave, and focusing it, instead, on defendant’s state of mind at the time of the taking. Under these circumstances, we are not prepared to say that there simply could be no satisfactory explanation for defense counsel’s actions. Therefore, we must reject the claim of ineffective assistance of counsel. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.)
Restitution and Parole Revocation Restitution Fines
Defendant contends that the trial court erred in imposing a restitution fine and a corresponding parole revocation fine of $1,600. He argues that the court improperly included the robbery conviction, the sentence for which was stayed, in calculating the amounts of the fines; the proper calculation under the statutory formula should have resulted in fines of $1,000 each. Defendant is correct.
At the sentencing hearing, the court stated, apparently referring to the probation officer’s recommendation: “There’s a restitution fine in the amount of $2,000 imposed under the formula permitted by … section 1202.4(b). There’s an additional restitution fine of an amount equal to that imposed under … section 1202.4. It’s suspended pursuant to section 1202.45.” Defense counsel objected that the court should not base the formula on the stayed count. The district attorney urged the court to follow the probation officer’s recommendation of $2,000 in fines because the statute spoke in terms of convictions, of which there were two, and also because the statute said that the “fine shall be set at the discretion of the Court and commensurate with the seriousness of the crime.” The court candidly admitted that it had “never had this before and actually have never done that before. And there is an issue as to whether that second count is 654…. What I’m going to do is sort of split. I’m going to make it $1,600, which is not then under the formula permitted, but it is less than the formula permitted, equal it, since the second count is three years. Although, again, perhaps, I need to do further research because this will come up again.”
The court stayed the conviction for robbery in count 2 pursuant to section 654. As we held recently, the ban on multiple punishments under section 654 applies to restitution fines imposed under section 1202.4 because those fines are, in fact, a form of punishment. (People v. Le (2006) 136 Cal.App.4th 925, 933.) “Thus, a restitution fine calculated under the formula provided by section 1202.4, subdivision (b)(2), constitutes a criminal penalty, not a civil remedy.” (Ibid., citing People v. Hanson (2000) 23 Cal.4th 355, 361-362.)
Section 1202.4, subdivision (b) requires the court to impose a restitution fine in every criminal case, and directs the court to set the fine in its discretion and commensurate with the seriousness of the offense, at not less than $200 or more than $10,000, if the person is convicted of a felony. In this instance, it is plain that the court below originally calculated the amount of the restitution fine with reference to the formula provided in section 1202.4, subdivision (b)(2). In fixing the fine at $2,000, it took the number of years of imprisonment on count 1 (five), multiplied that number by the number of counts (2) and then multiplied that number by $200 (5 x 2 x $200.) In reducing the fine to $1,600, the court, apparently unaware of Le, continued to question the correctness of defense counsel’s interpretation of section 654 and, more importantly, continued to tie the restitution fine to the statutory formula, albeit loosely. The court did not in any way indicate that its choice of $1,600 was reflective of the seriousness of defendant’s offense. It therefore improperly included the conviction in count 2 – which it stayed pursuant to section 654 – in its calculation of the restitution fine (and corresponding parole revocation fine).
The version of section 1202.4 in force at the time defendant was sentenced to prison in 2006 states, in relevant part: “(a)(1) … [¶] (2) Upon a person being convicted of any crime in the State of California, the court shall order the defendant to pay a fine in the form of a penalty assessment in accordance with Section 1464. [¶] (3) The court, in addition to any other penalty provided or imposed under the law, shall order the defendant to pay both of the following: [¶] (A) A restitution fine in accordance with subdivision (b). [¶] … [¶] (b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony…. [¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (Italics added.)
The court should not have included that count in calculating the restitution fine at all. It therefore erred in its imposition of a restitution fine (and corresponding parole revocation restitution fine) in amounts greater than authorized. Accordingly, we will reduce both fines to their proper amounts as calculated under section 1202.4, subdivision (b)(2): $1,000.
CONCLUSION
The trial court did not have a sua sponte duty to modify its instruction on the fear element of robbery. The trial court did not have a sua sponte duty to modify its instruction on the return of property. Ineffective assistance of counsel for failure to request a pinpoint instruction has not been shown. The restitution fine and parole revocation fine must be reduced to $1,000 pursuant to section 654.
DISPOSITION
The court’s order setting the restitution fine and the parole revocation fine at $1,600 each is vacated. The judgment is modified to reduce the restitution fine imposed under section 1202.4 to $1,000, and to reduce the suspended parole revocation fine imposed under section 1202.45 to $1,000. As modified, the judgment is affirmed. The superior court is directed to send a certified copy of the corrected abstract of judgment to the Department of Corrections.
WE CONCUR: Mihara, Acting P.J., Duffy, J.