Opinion
G062088
08-13-2024
THE PEOPLE, Plaintiff and Respondent, v. NAIN ISSAC NIETO HERNANDEZ, Defendant and Hernandez.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Hernandez. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 16HF0002 Richard M. King, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Hernandez.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Nain Issac Neto Hernandez hired the victim as an escort from an advertisement posted online. During their meeting, Hernandez killed her and fled the scene of the crime. Hernandez later returned to the scene and hid the victim's body in a trash can, where it was soon found by police. Hernandez was charged with one count of murder in violation of California Penal Code section 187, subdivision (a). The jury found Hernandez guilty of second degree murder, and the trial court imposed a sentence of 15 years to life with the possibility of parole.
All further undesignated statutory references are to the Penal Code.
On appeal, Hernandez argues there is insufficient evidence to prove that he acted with malice, or that the killing was not an accident or self-defense. Hernandez also claims the trial court erred by not granting a motion for mistrial based on a perceived Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) error. We find no errors and affirm the trial court's judgment.
Under Doyle, "the prosecution may not, consistent with due process and fundamental fairness, use postarrest silence following Miranda warnings to impeach a defendant's testimony at trial." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 118.)
FACTS AND PROCEDURAL HISTORY
On December 28, 2015, Hernandez responded to an ad posted by Cyren Entertainment on Backpage.com, a website that could be used to solicit prostitutes at the time. Hernandez requested an escort meet him at an office building in Newport Beach, where he provided janitorial services. Cyren Entertainment sent the victim, along with her driver (the driver) to the office building. They arrived at 10:18 p.m. This was the victim's fifth appointment that evening, and there was evidence she was under the influence of alcohol and drugs when she arrived at the building. Sometime after she entered the building, a purported altercation occurred between the victim, who was only 83 pounds, and Hernandez, who was 230 pounds and a trained mixed martial arts (MMA) fighter.
MMA is a "contact sport that allows a wide range of fighting techniques including striking, kicking, and grappling." (Merriam-Webster Online Dict. (2024) https://www.merriam-webster.com/dictionary/mixed%20martial%20arts, archived at https://perma.cc/WGD6-MB7S [as of July 31, 2024].)
According to Hernandez's testimony at trial, he paid the victim $700 for sexual services shortly after she entered the building. Before any such services were rendered, the victim stated she was going outside for a smoke and attempted to take Hernandez's money with her. When he refused to let her leave with his money, the victim became aggressive and approached Hernandez. The victim threatened to call people who she claimed would hurt Hernandez. The victim pulled out her phone, and Hernandez grappled with the victim to separate her from her phone. He eventually got the phone from her and put it in his pocket. According to Hernandez, the victim started "going crazy" and began screaming that people were going to kill him, so he gave her a hard push. Hernandez said he saw the victim fall to the ground. She landed on her butt first and then went "all the way down." He ran away before seeing if she got back up.
Hernandez testified he left the building and encountered the driver. Before leaving the area, Hernandez asked the driver if he had seen a girl exit the building, and then said that the girl had robbed him. According to Hernandez, he later returned to the office building, discovered the victim's dead body, and hid it in a trash can.
When the victim did not exit the office building, the driver called victim's supervisor (the supervisor) at Cyren Entertainment. The supervisor called Hernandez several times and asked Hernandez about the victim's whereabouts. After Hernandez told the supervisor that "[i]t's done, it's over," the supervisor called 911. Police officers soon arrived and searched the office building. The officers discovered the victim's body upside down in a trash can in a storage closet on the south side of the office building. An autopsy of the victim's body revealed an extensive fracture on the victim's skull, as well as numerous other bruises, abrasions, and fractures. Expert testimony indicates that the force that caused the extensive fracture likely came from the front on the either the left or right side. Expert testimony also indicates that at least some of the bruises could have been caused by lividity or could have been sustained by the victim during her earlier appointments.
Hernandez was arrested by police the following day. After being read his Miranda rights, Hernandez told Investigator Richard Henry that he was responsible for what had occurred, and that he was the only person that the police were looking for. During trial, Henry introduced the post-Miranda statement made by Hernandez. On cross-examination, Henry clarified that Hernandez did not say he murdered the victim, and besides saying he wanted to take responsibility, Hernandez did not use any legal terms of culpability. On redirect examination, the prosecution asked Henry if, at that time, Hernandez ever said that what occurred was an accident or self-defense.
Henry replied that Hernandez did not say what occurred was an accident or self-defense. Counsel for Hernandez moved for a mistrial based on Doyle error. Counsel argued that the prosecution misled the jury by implying that Hernandez's postarrest, post-Miranda silence undermined the credibility of Hernandez's present narrative. The prosecution argued Hernandez's counsel invited that line of questioning by asking for clarification from Henry about what Hernandez did not say. The trial court denied the motion. After lengthy deliberations, the jury found Hernandez guilty of second degree murder in violation of section 187, subdivision (a). The trial court sentenced Hernandez to 15 years to life with the possibility of parole.
DISCUSSION
I.
A. Sufficiency of the Evidence for the Murder Conviction
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one." (People v. Smith (2005) 37 Cal.4th 733, 738.) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
"'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206). Reversal is warranted only if there is no substantial evidence to support the verdict under any possible hypothesis. (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
Hernandez argues there is insufficient evidence to support the jury's finding that he acted with malice. Hernandez also asserts the prosecution failed to prove he was not acting in self-defense or that the killing was not an accident. In the alternative, he contends his conviction should be reduced to manslaughter because he acted in imperfect self-defense or killed the victim in the heat of passion. We are unpersuaded by any of these arguments.
1. Malice
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) In contrast, "[m]anslaughter is the unlawful killing of a human being without malice." (§ 192.) "[M]alice may be express or implied." (§ 188, subd. (a).) "Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." (§ 188, subd. (a)(1).) "Malice is implied when an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger." (People v. Elmore (2014) 59 Cal.4th 121, 133.) "Ill will toward, or hatred of, the victim are not prerequisites of malice as that term is used in the statutory definition of murder." (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103.)
On appeal, Hernandez argues he is, at most, guilty of manslaughter because there is insufficient evidence to support a finding of malice. We disagree. Though there were no witnesses to Hernandez's killing of the victim, other than Hernandez, the prosecution demonstrated through circumstantial evidence that he acted with express malice.
The jury could infer Hernandez acted with express malice from the victim's extensive injuries. The prosecution's expert witness determined the victim's cause of death to be "multiple blunt force traumatic injuries of the head." Specifically, there were fractures at the base and outer surfaces of her skull, including an extensive hinge fracture at the base of her skull. The expert witness testified the bone at the skull's base is very thick, so a great amount of force would be necessary to cause a hinge fracture. The expert witness explained she generally sees this type of fracture on someone getting thrown off a motorcycle going 150 miles per hour or jumping off a 30-foot-high bridge. There were also other injuries, including a fracture on the victim's left ribcage, bruises on her right knee and shins, bruises on her shoulders, hands, face, and abrasions on her face. From these significant injuries and the expert's testimony concerning the amount of force needed to inflict them, the jury could reasonably find Hernandez attacked the victim and did so with an intent to kill her.
On appeal, Hernandez contends he is the only percipient witness of the killing and cites his trial testimony that he merely gave the victim a hard push. But his narrative is inconsistent with the expert testimony, which indicates that the victim's injuries required Hernandez to use force far greater than a single push. The expert witness also said the force that caused the injuries came from either the victim's left or right side of her skull. As such, the victim's multiple blunt force injuries were unlikely to be caused by the victim falling backwards. The expert witness opined that the victim was "an 83-pound . . . thin lady, and even if she had [been pushed and] fallen back towards the back of her skull, I would most likely not expect these types of injuries in her." The jury did not appear to believe Hernandez's account, and we do not resolve questions of credibility on appeal. (People v. Young, supra, 34 Cal.4th at p. 1181.)
Hernandez relies on the presumption that a brief altercation in which the aggressor uses only their fists does not support a finding of malice. "[I]f the blows causing death are inflicted with the fist, and there are no aggravating circumstances, the law will not raise the implication of malice aforethought." (People v. Munn (1884) 65 Cal. 211, 213 (Munn).) However, the facts of Munn are easily distinguishable from the facts presented here. The defendant in Munn struck his victim two or three times with his fists during a bar fight. (Id. at pp. 211-212.) These blows resulted in the victim's death, and the defendant was convicted of second degree murder. (Ibid.) The court overturned the conviction on the grounds that there was not "any intention on the part of the defendant to kill the deceased." (Id. at p. 214.)
Munn, however, featured a victim that was "was nearly or quite as large as the defendant." (Munn, supra, 65 Cal. at p. 212.) Here, there was a considerable size difference between Hernandez and the victim. The victim weighed only 83 pounds and was intoxicated. In contrast, Hernandez weighed around 230 pounds. Moreover, he was a trained MMA fighter that had previously competed in cage fights. Hernandez testified that he knew he could knock the victim out with just one punch. By deliberately inflicting numerous fractures, bruises, and abrasions on a vulnerable person so much smaller than himself, the jury could have reasonably found that Hernandez attacked the victim with the intention of killing her.
The nature of the victim's injuries was also significantly different in Munn. When the defendant in Munn struck his victim, the blows did not "immediately afterward seem to produce any serious effect." (Munn, supra, 65 Cal. at p. 212.) It was only the morning after that the victim was found dead in his room. (Ibid.) Further, the expert testimony from Munn demonstrated "that the blow happened by chance to fall upon that portion of the skull which is the thinnest and most easily fractured." (Id. at p. 214.) Here, the expert testimony demonstrates that Hernandez applied an immense amount of force to either the left or right side of the victim's skull. From this testimony and the severity of the victim's injuries, a jury could reasonably conclude her death did not occur merely by extraordinary chance.
There is also sufficient evidence to support a finding of implied malice. The jury could have inferred from the location of the victim's injuries, and the aggravating circumstances in which they were inflicted, that Hernandez acted with implied malice. (See People v. Ogg (1958) 159 Cal.App.2d 38, 47-48 [the size difference between the defendant and his victim, as well as the "considerable force" necessary to cause the victim's injuries, were circumstances from which a jury could infer implied malice].) Head injuries, particularly those that cause extensive brain hemorrhaging, are commonly known to be fatal. Inflicting a head injury does not automatically imply that the defendant acted with a conscious disregard for human life; however, in this case, "the manner of the assault and the circumstances under which it was made" support such an inference. (People v. Cravens (2012) 53 Cal.4th 500, 508 (Cravens).)
For example, in Cravens the defendant was convicted of second degree murder after punching the victim's head, resulting in the victim's death. (Cravens, supra, 53 Cal.4th at p. 506.) The California Supreme Court found that the defendant acted with implied malice because he "secured himself every advantage to ensure that he could inflict the greatest possible injury on his victim." (Id. at p. 509.) The "defendant targeted a smaller and shorter victim who was intoxicated, exhausted, and vulnerable." (Id. at p. 508.) The defendant stood two inches on a curb while the victim was on the pavement, thus ensuring that the victim would suffer a serious injury when they fell on a hard surface. (Id. at p. 509.) Lastly, the defendant's conduct after the attack evidenced that he acted with implied malice because he "took no steps to ascertain [the victim's] condition or to secure emergency assistance." (Id. at p. 511.)
Like the defendant in Cravens, Hernandez targeted a victim that was clearly vulnerable. He was a trained MMA fighter that weighed over two-and-a-half times more than the victim. The victim had no way of defending herself, no easy means of escape, and her petite stature made her particularly susceptible to injury. Given this context, a reasonable jury could infer that Hernandez consciously disregarded the risk that the victim would sustain a fatal injury when he chose to strike her in the head with great force. The victim's extensive injuries elsewhere lend additional support for finding that Hernandez acted with a reckless disregard for the victim's life.
Further, as in Cravens, Hernandez failed to help the victim. A reasonable jury could conclude that failing to seek any help whatsoever reveals Hernandez's callous indifference towards the victim. (See People v. Ogg, supra, 159 Cal.App.2d at p. 51 [defendant's failure to seek the assistance or obtain medical aid indicated a heartless attitude toward their victim].) Instead of seeking help, Hernandez lied to the driver about the victim leaving the building, and then returned to hide the victim's body. A jury could reasonably find that, for Hernandez's subsequent actions to make sense, Hernandez first attacked the victim with a complete disregard for her life. Then, understanding his attack went too far, Hernandez took deliberate steps to conceal his crime.
2. Complete Defenses
Self-defense and accidental killing in the heat of passion are both complete defenses to homicide. (§§ 195, 197.) To successfully assert selfdefense in California, a defendant must "'actually and reasonably believe in the need to defend.'" (People v. Horn (2021) 63 Cal.App.5th 672, 682.) A claim of self-defense can be defeated if a "'jury finds that the nature of the attack did not justify the resort to deadly force or that the force used exceeded that which was reasonably necessary to repel the attack.'" (People v. Hardin (2000) 85 Cal.App.4th 625, 630.) Likewise, a killing is excusable if the defendant acted lawfully and killed someone "by accident or misfortune in the heat of passion, under sudden and sufficient provocation." (People v. Cooley (1962) 211 Cal.App.2d 173, 204, disapproved on other grounds by People v. Lew (1968) 68 Cal.2d 774, 785, fn. 1.) This form of excusable killing requires that the defendant commit neither an unlawful act, nor a lawful act that could result in death without due caution or circumspection. (Id. at p. 207.)
As to Hernandez's self-defense and accidental killing arguments, the jury could reasonably find Hernandez's account of the altercation lacked merit and he attacked the victim with intent to kill. As set forth above, the jury could infer Hernandez's intent to kill based on the extent of the victim's injuries and the numerous steps Hernandez took to conceal his actions. These facts reasonably indicate that the victim's death was no mere accident.
Further, as to his self-defense argument, even if the jury did find some merit to Hernandez's account, his narrative demonstrates this defense does not apply. Although Hernandez testified that he felt scared when the victim threatened to call people who would hurt him, this belief alone is insufficient for a claim of self-defense. In addition to being earnest, a claim of self-defense also requires that the belief be "objectively reasonable." (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) It is undisputed that the victim was unarmed and without any means of inflicting damage to Hernandez, who was a trained fighter and significantly bigger than her. Hernandez was never at risk of any bodily harm, and he never testified to circumstances that would justify believing otherwise. Although he claimed to be scared that the victim would call people who would hurt him, Hernandez cannot justify harming the victim because "a fear of future harm to one's life does not relieve one of responsibility for the crimes he commits." (People v. Lewis (1963) 222 Cal.App.2d 136, 141.)
3. Partial Defenses
Hernandez also asserts his murder conviction should be reduced to manslaughter based on two partial defenses: (1) imperfect self-defense (also known as unreasonable self-defense), or (2) killing in the heat of passion. But these arguments are rooted in Hernandez's account of the altercation, which the jury did not appear to believe. Further, even if we accept his account as true, the jury had adequate grounds to reject these partial defenses and find Hernandez guilty of second degree murder.
As to Hernandez's first argument, a defendant may only be guilty of voluntary manslaughter if they lack malice due to an "unreasonable but good faith belief in having to act in self-defense." (People v. McCoy (2001) 25 Cal.4th 1111, 1116.) Hernandez argues he acted with an actual belief in the need for self-defense, thereby obviating the malice element of the crime. However, a jury could reasonably find otherwise based on the circumstances of the killing. The victim was much smaller than Hernandez and unarmed. There was no evidence the altercation did not otherwise pose any imminent danger to Hernandez, a trained MMA fighter. Thus, a jury could reasonably find it untrue that Hernandez harbored an actual belief in the need for selfdefense under the circumstances.
Further, any fear for his life or safety that Hernandez felt from the victim's threats to call people to harm him should have dissipated when he took possession of her cell phone. At that point, the victim was no longer able to call people to come and hurt Hernandez. Yet Hernandez testified that he pushed the victim after he already had her phone. Once he separated the victim from her cell phone, her threats to call people to harm him were nullified. As such, a jury could reasonably find that there was no way Hernandez believed he needed to defend himself after that point. Besides the victim's yelling, nothing in Hernandez's testimony indicated that there was anything he needed to defend himself from.
As to Hernandez's second argument, a killing that occurs due to a heat of passion is relegated to voluntary manslaughter due to a lack of malice aforethought. "Heat of passion . . . is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation." (People v. Beltran (2013) 56 Cal.4th 935, 942.) For there to be sufficient provocation, it must cause an ordinary person of average disposition "to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." (People v. Logan (1917) 175 Cal. 45, 49.) Evaluating sufficient provocation is an objective test independent of the defendant's subjective mentality. (See People v. Wright (2015) 242 Cal.App.4th 1461, 1500 (conc. opn. of Humes, P.J.).)
Hernandez's arguments regarding killing in the heat of passion fail for similar reasons as his self-defense argument. Hernandez testified that the altercation between himself and the victim caused him to become panicked. Even so, sufficient provocation is evaluated based on an objective, not subjective standard. A reasonable jury could conclude that an ordinary person of average disposition would not inflict such extensive injuries to the victim simply because she was yelling or threatening to make a phone call.
B. Mistrial based on Doyle Error
"[Miranda warnings] require that a person taken into custody be advised immediately that he has the right to remain silent . . . it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." (Doyle, supra, 426 U.S. at pp. 617-618.) In simplistic terms, a court cannot permit the prosecution to draw adverse inferences, or even call to attention, a defendant's post-Miranda silence. (See Greer v. Miller (1987) 483 U.S. 756, 763.) A violation of Doyle is a constitutional error that necessitates reversal unless the prosecution can prove "beyond a reasonable doubt that the [Doyle] error complained of did not contribute to the verdict obtained." (Chapman v. California (1967) 386 U.S. 18, 24.)
The Doyle rule does not shield defendants from all questioning regarding their post-Miranda statements. "Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." (Anderson v. Charles (1980) 447 U.S. 404, 408.) Additionally, Doyle cannot be understood as preventing the prosecution from fairly commenting on post-Miranda statements voluntarily made by the defendant. "[A Doyle violation] does not occur where the prosecutor's reference to defendant's postarrest silence constitutes a fair response to defendant's claim or a fair comment on the evidence." (People v. Champion (2005) 134 Cal.App.4th 1440, 1448.) Lastly, consideration is given to how a jury would understand the statement, and a Doyle violation is unlikely to be found when "the remarks of the prosecutor did not invite the jury to draw any adverse inference from either the fact or the timing of defendant's exercise of his constitutional right." (People v. Crandell (1988) 46 Cal.3d 833, 878, abrogated on other grounds by People v. Crayton (2002) 28 Cal.4th 346, 361.)
Trial courts are granted significant deference in determining when a motion for a mistrial based on Doyle error should be granted. "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." (People v. Haskett (1982) 30 Cal.3d 841, 854.) Appellate courts "use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial." (People v. Bolden (2002) 29 Cal.4th 515, 555.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Hernandez argues on appeal that the prosecution's questions to Investigator Henry about Hernandez's post-Miranda comments constitutes Doyle error. Particularly, Hernandez's position is that the jury was misled into discrediting the narrative he presented at trial based on his invocation of his Miranda rights.
The relevant line of questioning arose during the prosecution's examination of Henry:
"Q: Investigator Henry, . . . at the conclusion of the Miranda rights, did the defendant tell you that he was responsible for what had occurred and he wanted to take responsibility, and then that he was the only person that we were looking for in regards to what had occurred?
"A: Yes." Hernandez revisited this line of questioning during his cross-examination of Henry:
"Q. You Mirandized him, and before you could ask him a question, he told you he was responsible for what had occurred and wanted to take responsibility for it, right?
"A. Something to that effect, yes.
"Q. But he didn't say something to you like, 'I murdered that girl and I want to confess'?
"A. No.
"Q. He didn't use any legal terms of culpability?
"A. No.
"Q. He just said he was responsible and he wanted to take responsibility for it and there was nobody else. He was the guy you were looking for; correct?
"A. Yes."
Right after the exchange above, the prosecution conducted a redirect examination of Henry concerning Hernandez's statements:
"Q. At that time, did he ever tell you that it was an accident?
"A. No.
"Q. Did he ever tell you at that time that it was self-defense?
"A. No."
Following this exchange, Hernandez moved for a mistrial based on a Doyle violation, arguing the prosecutor's questions during redirect were improper. The trial court denied it. The trial court found the questions on redirect were allowable and relevant for the jury to hear a discussion of what Hernandez said, and did not say, in his post-Miranda statements.
We find no Doyle error. Counsel for Hernandez asked Henry to clarify Hernandez's post-Miranda statement. Henry denied that Hernandez used certain terms and phrases. Likewise, the prosecution asked Henry if Hernandez used other terms like "accident" or "self-defense." Henry denied that those terms were included in Hernandez's statement. Counsel for Hernandez invited this line of questioning from the prosecution by asking clarifying questions about Hernandez's statement during cross-examination. The prosecution's line of questioning was neither improper, nor was it outside the scope of redirect examination. Doyle does not bar the prosecution from fairly commenting on a defendant's post-Miranda statements.
The prosecution did not make any adverse inferences from, or even call attention to, Hernandez's post-Miranda invocation. Rather, the prosecution's line of questioning pointed out the inconsistency between the statement that Hernandez voluntarily gave to Henry, and Hernandez's testimony during trial. The prosecution never mentioned that Hernandez invoked his Miranda rights, and simply asking for clarification about Hernandez's post-Miranda statement does not have that same effect. The prosecution drew meaning only from Hernandez's voluntary statement, not from Hernandez's subsequent silence. The trial court judge was neither irrational nor arbitrary when he found that the prosecution did not mislead the jury.
Because we find no basis for Hernandez's claim of Doyle error, we need not address whether such an error was unduly prejudicial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'LEARY, P. J., MOTOIKE, J.