Opinion
H036560
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. MAYITO GUZMAN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC824916)
Following a jury trial, appellant Mayito Guzman was found guilty of one count of second degree robbery. (Pen. Code, §§ 211-212.5, subd. (c).) After waiving his right to a jury trial and a court trial on prior conviction allegations, appellant admitted that pursuant to Penal Code sections 667, subdivisions (a) and (b)-(i), 1170.12, 1192.7, and 667.5 he had been convicted of a serious/violent felony, to wit assault with a deadly weapon involving personal infliction of great bodily injury, for which he served a prior prison term.
On January 21, 2011, the court sentenced appellant to 11 years in state prison consisting of six years for the second degree robbery conviction and pursuant to Penal Code section 667, subdivision (a)(1), five years for the prior conviction. The court stayed the additional punishment of one year for the prison prior. Relevant to this appeal, the court ordered that appellant pay $350 in attorney fees.
Appellant filed a timely notice of appeal.
On appeal, appellant contends that the trial court erred in failing to give an instruction on assault and battery as lesser included offenses of robbery under the accusatory pleading test. Further, his counsel was ineffective in failing to request a more specific limiting instruction regarding the permissible use of his prior conviction and failing to object to prosecutorial misconduct. Finally, the trial court erred in ordering him to pay attorney fees where there was insufficient evidence of his ability to pay.
For reasons that follow, we affirm the judgment, but strike the order requiring appellant to pay $350 in attorney fees.
Facts and Proceedings Below
Prosecution Evidence
At approximately 10 a.m. on November 10, 2008, Edward Tan drove his brother Dennis to the Bank of America on Alum Rock Avenue in San Jose. Dennis was to withdraw money for their employer Tomra Recycling. Generally, Edward and Dennis go to the bank together, usually twice a week at around 10 a.m.
We refer to Dennis Tan and Edward Tan by their first names to avoid any confusion, not out of disrespect.
On November 10, while Edward waited in the car, Dennis went into the bank, withdrew approximately $17,000 in cash, put it into a green shoulder bag and left the bank. As Dennis was crossing the bank's parking lot someone approached him from behind and hit him in the back of the neck; he said it felt as if the person used a fist. Dennis did not see the person who struck him. As he fell to his knees, the heavy bag of money fell to the ground and Dennis saw someone try to pick up the bag. Dennis jumped up to go after that person. Dennis was able to catch the person and hold him down. At this point in time, some of the cash had fallen out of the bag. Once Dennis had a hold on the person, he shouted for his brother to help him. Once his brother ran over, they both held down the person. Edward testified that he saw his brother being hit from behind; he identified appellant as the man that he saw hit his brother.
While both Dennis and Edward were holding appellant down, a van pulled up and the driver got out of the van and asked Dennis and Edward if they needed help. Dennis believed that the man was offering to call the police. However, instead of helping, the man took the money bag, put it inside the van and drove off very quickly.
San Jose Police Officer Wilson Yeung was working as a patrol officer on November 10, 2008. He responded to a call from dispatch of people fighting in the parking lot of the Bank of America on Alum Rock Avenue. When he arrived at the parking lot he saw two people holding down another person. Officer Yeung identified appellant as the man who was being held down. In his report, Officer Yeung indicated that in terms of appearance appellant was unkempt and dirty and had body odor; some teeth were missing or rotten. Also, in terms of an address for appellant, he noted that appellant was transient.
Officer Albin took appellant into custody. When he searched appellant he found a screwdriver, a pocket knife and two pairs of gloves.
Around 10 p.m. on November 10, 2008, San Jose Police Officer Daniel Akery found the van that had stopped in the parking lot of the Bank of America earlier in the day. The van had stolen plates both on the front and back. One of the plates was stolen from a vehicle in Elk Grove. The van had been completely burned, so much so that Officer Akery was not able to open the doors as they were melted onto the frame; he said that it "was totally burnt to a crisp."
Defense Evidence
Appellant testified in his own defense. He said that the day before his arrest on November 10, 2008, he had been doing some work for a rug seller at a flea market taking down a tent and displays. He did occasional work at the flea market, but he did not have a steady job.
After appellant finished work at the flea market, he said that he and some other workers had some drinks; he used some methamphetamine. Later, he went to his girlfriend's house, but they got into an argument and he left early in the morning. He took with him two pairs of gloves, a pocket knife for opening boxes and a screwdriver, which he used to disassemble tents at the flea market.
Appellant explained that he took the bus to the Alum Rock and Jackson area to see a friend about a job, but the friend was not at home. Since he knew a girlfriend who lived just up Alum Rock Avenue he went back toward the bus stop at Alum Rock Avenue and Jackson to go to see her. However, since he had used up his bus pass he debated whether to ask someone getting off a bus if they had a bus pass he could use. While he was waiting at the bus stop a stranger approached him and asked him if he wanted to "make $50."
The stranger asked appellant to "shove" a man that appellant saw walking into the bank. The stranger told appellant to " '[j]ust push [the] guy when he comes out.' " Appellant said he was skeptical, but the stranger told him to relax and that everything would be "cool." Appellant said that the stranger would not pay him the $50 before he pushed the man, but assured him that he would be paid.
Appellant denied knowing the man that offered to pay him $50 and could describe him only as Asian, possibly Vietnamese, wearing a denim hat; he remembered that he might have been wearing khaki colored pants.
Appellant testified that when Dennis came out of the bank, the stranger told him, "Hey, there he is" so he started walking toward Dennis; then, he began to trot to catch up with him. He pushed Dennis from behind; Dennis stumbled to the ground. As he took a step toward Dennis, Dennis turned around and "rushed on" him. As the two of them struggled, Edward tackled him from behind. Dennis and Edward wrestled him to the ground but he tried to push them away. Appellant said that he was confused and could not understand what was going on. He was waiting to see the person that he talked to at the bus stop, but he could not see him anywhere. He had expected the man would be standing close by after he pushed Dennis and would hand him the $50 he promised him.
Appellant said that he did not pull a knife or any weapons and he denied reaching for Dennis's bag. When the police arrived he was handcuffed; that is when he saw some money on the ground. He denied seeing a van drive up to them. He never saw the stranger after he left the bus stop and he never received any money. Appellant maintained that he was not part of any plan to rob Dennis and his only involvement in the incident was in pushing Dennis.
On cross-examination appellant admitted that he had been convicted of felony assault with a deadly weapon and testified that he knew the consequences of pushing a person with force and he was "stupid" for having done so.
Discussion
Instructional Error
Appellant contends that the trial court should have given the jury instructions on assault and battery as lesser included offenses of robbery under the accusatory pleading test.
Without doubt, " '[a] court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citations.] This sua sponte obligation extends to lesser included offenses if the evidence "raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense." ' [Citation.] [¶] We employ two alternative tests to determine whether a lesser offense is necessarily included in a greater offense. Under the elements test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser. Under the accusatory pleading test, by contrast, we look not to official definitions, but to whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime." (People v. Moon (2005) 37 Cal.4th 1, 25-26.) " 'On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.' [Citation.]" (People v. Avila (2009) 46 Cal.4th 680, 705.)
Under the statutory elements test, assault is not a lesser included offense of robbery. Under the statutory definition of robbery (Pen. Code, § 211), a robbery may be committed by a taking from the person of another by the disjunctive "force or fear." Assault, on the other hand, requires an unlawful attempt to apply physical force and a present ability to apply such physical force. (People v. Wright (1996) 52 Cal.App.4th 203, 209 (Wright); Pen. Code, § 240.) Since a robbery can be committed strictly by frightening a victim into surrendering property, it would not necessarily include assault. (Wright, supra, 52 Cal.App.4th at p. 209.) Accordingly, there is no duty to instruct on assault as a lesser included offense of robbery as the two are defined. (Ibid.)
Nonetheless, the information in this case alleged that appellant committed the offense of second degree robbery using the conjunctive "force and fear." Based on this, appellant claims the robbery as alleged necessarily included the lesser offense of assault.
We note that the jury was instructed in the language of CALCRIM No. 1600, that to find appellant guilty of robbery, the People were required to prove he "used force or fear to take the property or to prevent the person from resisting." (Italics added.)
The contention that assault is a lesser included offense of robbery under the accusatory pleading test, where the force or fear element of robbery in Penal Code section 211 is pleaded in the conjunctive, was rejected in Wright, supra, 52 Cal.App.4th at pages 208-211. The appellate court in Wright reasoned that " 'force' is not an element of robbery independent of 'fear'; there is an equivalency between the two. ' "[T]he coercive effect of fear induced by threats . . . is in itself a form of force, so that either factor may normally be considered as attended by the other." ' [Citation.] . . . [¶] Since the element of force can be satisfied by evidence of fear, it is possible to commit a robbery by force without necessarily committing an assault. Consequently, under the 'accusatory pleading' test, assault is not necessarily included when the pleading alleges a robbery by force." (Id., at p. 210.) This issue was noted by our Supreme Court in People v. Parson (2008) 44 Cal.4th 332, 350 (Parson), but was not addressed on the merits. Rather, the Parson court stated that even if it assumed that assault is a lesser included offense of robbery "the trial court was under no sua sponte obligation to instruct on assault if . . . there was no substantial evidence supporting a jury determination that the defendant was in fact guilty only of that offense." (Ibid., italics added.)
Nevertheless, a number of cases recognize a defendant is entitled to assault instructions on request when charged with robbery if the evidence warrants. (People v. Carter (1969) 275 Cal.App.2d 815, 823-824; People v. Duncan (1945) 72 Cal.App.2d 423, 426; People v. Driscoll (1942) 53 Cal.App.2d 590, 593.)
Similarly, here, even if this court assumed that assault is a lesser included offense of robbery under the accusatory pleading test, there was no substantial evidence that would support a jury determination that appellant was in fact guilty of only that offense. To the contrary, the evidence was overwhelming that appellant was involved in a robbery. Appellant admitted that he "pushed" Dennis; Dennis saw him reach for the bag of money. Further, appellant's story that he was approached by a man that he did not know to push Dennis once Dennis came out of the bank and get $50 for his trouble is just inherently incredible given that appellant knows from experience how much trouble he could be in if Dennis decided to call the police. Even assuming the truth of appellant's version of events, it is reasonable to infer that he knew that he was participating in a robbery. Appellant testified that he saw Dennis walk into the bank carrying a bag. He was told to push Dennis only after he came out of the bank, something that would either cause him to drop the bag—as happened here—or distract Dennis long enough for someone else to take the bag. Appellant was told that he would not be paid until after he pushed Dennis, which was to occur only after Dennis came out of the bank. At a minimum, the foregoing furnishes substantial evidence that appellant knew that he was aiding and abetting a robbery.
Robbery under the theory that appellant aided and abetted a robbery required that appellant took property that was not his own (or aided and abetted a perpetrator who directly committed the crime) from another person's possession and immediate presence, against that person's will by force or fear with the intent to deprive the owner of it permanently. (CALCRIM Nos. 1600, 400.)
As to appellant's argument that the court erred in not instructing the jury on battery as a lesser included offense of robbery, we note that defense counsel did request such an instruction, but the court declined to give one reasoning that battery is not a lesser included offense of robbery.
Again, assuming that battery is a lesser included offense of robbery as alleged here, as we have stated ante an instruction on a lesser included offense is necessary only " 'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.' [Citation.]" (People v. Barton (1995) 12 Cal.4th 186, 194-195, fn. omitted.) As our Supreme Court clarified in People v. Breverman (1998) 19 Cal.4th 142, "the sua sponte duty to instruct on a lesser included offense arises if there is substantial evidence the defendant is guilty of the lesser offense, but not the charged offense. [Citation.] This standard requires instructions on a lesser included offense whenever ' "a jury composed of reasonable [persons] could. . . conclude [ ]" ' that the lesser, but not the greater, offense was committed. [Citations.] In deciding whether evidence is 'substantial' in this context, a court determines only its bare legal sufficiency, not its weight. [Citations.]" (Id. at p. 177.)
Again, there is no question in this case that all the elements of robbery were present. To put it another way, " 'there is no evidence that the offense was less than that charged.' [Citation.]" (People v. Barton, supra, 12 Cal.4th at p. 195, fn. omitted.)
Accordingly, we find no merit in appellant's contention that the court erred in failing to give the jury instructions on assault and battery.
Ineffective Assistance of Counsel
In limine, the trial court ruled that evidence of appellant's prior conviction for assault with a deadly weapon could be used for the limited purpose of impeachment if appellant testified.
Appellant admitted on direct examination that he had a "run-in with the law" in 1997 for assault with a deadly weapon. As noted, on cross-examination appellant admitted that he had been convicted of felony assault with a deadly weapon and testified that he knew the consequences of pushing a person with force and he was "stupid" for having done so.
Appellant contends that during argument to the jury, the prosecutor used the evidence of his prior conviction not to impeach his credibility, but as evidence of his propensity to commit the charged crime.
Appellant takes issue with the following, which occurred during the prosecutor's opening argument to the jury: "Also, we talked about in jury selection the defendant having a criminal past. And some of you said, 'A clean slate.' It didn't matter to you. Well, there is a jury instruction that says you can consider the prior felony. And it's not because once a felon, always a felon. But it's something you can look into their character. [¶] And what was the defendant's prior felony for? Assault with a deadly weapon. He knows better than anyone that using physical violence upon a person leads you into major trouble. So are you to believe that this man is just sitting on a bus stop minding his own business and willing to give up everything for $50? Ladies and gentlemen, that is ridiculous. There is no way that a man with that knowledge is willing to give it all up for 50 bucks."
Appellant seizes upon this argument to contend that trial counsel was ineffective in failing to request a specific limiting instruction and to object to this argument as prosecutorial misconduct.
Appellant concedes that the court instructed the jury with CALCRIM No. 303, which informed them that "certain evidence was admitted for a limited purpose" and they could "consider that evidence only for . . . that purpose and no other." However, appellant points out—correctly—that the jury was never informed which evidence was admitted for a limited purpose or for what that limited purpose was to be.
A criminal defendant has a state and federal constitutional right to the effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Pope (1979) 23 Cal.3d 412, 422, disapproved on another point in People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) In order to show ineffective assistance, a defendant has the burden of establishing that: (1) trial counsel's performance fell below prevailing professional standards of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the outcome of the case would have been different. (People v. Ledesma, supra, at pp. 216-218.) A reasonable probability is one " 'sufficient to undermine confidence in the outcome.' " (Id. at p. 218, quoting Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).)
Nevertheless, a reviewing court need not assess the two factors of the inquiry in order; and if the record reveals that petitioner suffered no prejudice, we may decide the issue of ineffective assistance of counsel on that basis alone. (Strickland, supra, 466 U.S. at p. 697.) If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice that course should be followed. (Ibid.)
Furthermore, "[a] defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. 'If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Thus, the standard of appellate review of a claim of ineffective assistance of counsel is well established. Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of professional assistance.' " [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." [Citation.]' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 954.)
Generally, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct. (People v. Collie (1981) 30 Cal.3d 43, 64; see also People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052.) Accordingly, if, as happened here, the prosecution elicited evidence that appellant's "run in with the law" was in fact a conviction, defense counsel should have been on notice that he was required to ask for a limiting instruction on the use of that evidence. Here, the record is silent as to whether defense counsel had a tactical purpose in failing to request a more specific instruction limiting evidence of appellant's prior conviction only to impeach his credibility.
CALCRIM No. 316 provides, "If you find that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." As the bench notes to CALCRIM No. 316 indicate, if a felony conviction has been admitted only on the issue of credibility, the bracketed word "only" is to be used. (CALCRIM No. 316 (2009) p. 93.) There is no sua sponte duty to give this instruction; however, the instruction must be given on request. (People v. Kendrick (1989) 211 Cal.App.3d 1273, 1277-1278; People v. Hernandez, supra, 33 Cal.4th at pp. 1051-1052 [overruling People v. Mayfield (1972) 23 Cal.App.3d 236, which had found a sua sponte duty to give limiting instruction on felony convictions admitted for impeachment].)
Respondent concedes that the record does not contain an explanation of why trial counsel did not request a limiting instruction or failed to object during the prosecutor's argument. Nevertheless, respondent suggests that a satisfactory explanation could exist—"For example, defense counsel could have believed the statements were directed at appellant's credibility and were not made for an improper purpose and therefore it was not necessary to ask the court for a limiting instruction or object."
Certainly, with regard to objecting to the prosecutor's argument, defense counsel could have made a reasonable tactical decision not to object because some of what the prosecutor said actually helped appellant. That is, the phrase "it's not because once a felon, always a felon" implies, in essence, appellant's prior conviction could not be used for propensity evidence. However, we see no reasonable tactical decision not to request a limiting instruction such as CALCRIM No. 316.
Without a doubt, however, what the prosecutor suggested by saying that the jury could consider the prior felony conviction as character evidence was incorrect. (Evid. Code, § 1101 [evidence of a defendant's character in the form of specific instances of conduct is inadmissible to prove a defendant's conduct on a specified occasion].) It appears to this court, however, that since the prosecutor went on to talk about whether the jury could believe appellant's story about the man at the bus stop, the prosecutor misspoke and meant to say that the jury could consider the prior felony conviction in assessing appellant's credibility. (CALCRIM No. 226.)
That being said, we do not find that appellant was prejudiced by the lack of a limiting instruction or the prosecutor's argument. That is, there is no reasonable probability that but for counsel's unprofessional errors the result of the proceeding would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
It is undisputed that appellant pushed/hit Dennis when he came out of the bank. The only issue for the jury was whether appellant aided and abetted the man in the van who actually took the money or conspired with him so to do. Given that Dennis testified that appellant reached for the bag of money, appellant's story that he was approached by a man that he did not know and offered $50 to just push Dennis was so lacking in credibility that no reasonable jury would have been persuaded by it.
In other words, even if a limiting instruction had been given and even if defense counsel had objected to the prosecutor's argument, the jury would still have convicted appellant because appellant's version of events was inherently incredible.
The fact that defense counsel raised no objection based on misconduct to the prosecutor's purportedly improper comments signifies to this court that the remarks were not as offensive or damaging as appellant now claims.
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Since appellant suffered no prejudice, his ineffective assistance of counsel claim necessarily fails. (Strickland, supra, 466 U.S. at p. 687.)
Attorney Fees
As noted, the trial court ordered that appellant pay $350 in attorney fees. Appellant contends that this court should strike the order because there is no evidence of his ability to pay and due to his incarceration he has no financial prospects. Respondent concedes that no hearing was conducted on appellant's ability to pay and suggests that the matter should be remanded to determine if appellant has the present ability to pay.
Penal Code section 987.8, subdivision (b) provides in relevant part: "In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the criminal proceedings in the trial court, or upon the withdrawal of the public defender or appointed private counsel, the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. The court may, in its discretion, hold one such additional hearing within six months of the conclusion of the criminal proceedings. The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided." (Italics added.)
Further, Penal Code section 987.8, subdivision (g)(2) specifies: " 'Ability to pay' means the overall capability of the defendant to reimburse the costs, or a portion of the costs, of the legal assistance provided to him or her, and shall include, but not be limited to, all of the following: [¶] (A) The defendant's present financial position. [¶] (B) The defendant's reasonably discernible future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant's reasonably discernible future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant's financial capability to reimburse the county for the costs of the legal assistance provided to the defendant." (Italics added.)
"We read [Penal Code] section 987.8, subdivision (b) as expressly requiring a finding—whether express or implied—by the court of a defendant's ability to pay as a condition to an order assessing attorney fees—an order that is not mandatory." (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1398 (Pacheco).) Here, there is nothing in the record addressing the issue of appellant's ability to pay.
An attorney fees order cannot be upheld on appeal unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347; Pacheco, supra, 187 Cal.App.4th at p. 1398.) We find no such evidence here.
As respondent concedes, appellant was working "odd jobs" at the flea market or wherever he could find work. He struggled to pay his rent and had been evicted. The record does not reveal any financial resources that appellant might have had and the probation report does not contain any information related to appellant's financial condition. Furthermore, Officer Albin's description of appellant at the time of his arrest implies that he was probably homeless and not in good physical condition.
Nevertheless, relying on People v. Flores (2003) 30 Cal.4th 1059 (Flores), respondent argues that the matter should be remanded to the trial court for a determination of defendant's ability to pay. We find Flores to be distinguishable from the present case. In Flores, the defendant was employed and possessed jewelry that was worth $1,500 at the time of sentencing, and the matter was remanded for a determination of whether he had the ability to pay $5,000 in attorney's fees. (Id. at pp. 1068-1069.) Here, basically, appellant was unemployed and transient; and there was no evidence that he had any assets. Accordingly, given that appellant is in prison, rather than remanding for a further proceeding, which is likely to result in additional expenditure far exceeding the amount at issue, in the interests of judicial efficiency and economy, we will strike the order to pay attorney fees of $350.
Disposition
We modify the judgment by striking the order that appellant pay $350 in attorney fees. As so modified, the judgment is affirmed.
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ELIA, J.
WE CONCUR:
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RUSHING, P. J.
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PREMO, J.