Opinion
E063996
02-16-2017
THE PEOPLE, Plaintiff and Respondent, v. EARL LEWIS HOUSER, JR., Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVA1400075) OPINION APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown, Judge. Reversed. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
During a trial on multiple counts of sexual offenses against a child, defense counsel informed the court that he had a doubt as to defendant and appellant Earl Lewis Houser, Jr.'s mental competence to stand trial. The trial court appointed a psychologist to assess defendant's mental competence within the meaning of Penal Code section 1367, subdivision (a), and to advise the court whether there was substantial evidence that defendant was not competent to stand trial. Following a hearing at which the psychologist testified and was cross-examined by both the prosecution and the defense, the trial court concluded that defendant was mentally competent to stand trial. The trial resumed and defendant was convicted on all counts.
All further statutory citations refer to the Penal Code.
Defendant's initial briefing addressed the question whether the court's ruling that defendant was mentally competent was supported by substantial evidence. We concluded, however, based on California Supreme Court opinions beginning with People v. Pennington (1967) 66 Cal.2d 508 (Pennington), that the issue before the trial court at that juncture was whether the expert's testimony was sufficient to raise a reasonable doubt as to defendant's competence and thus triggered his constitutional right to a full competency hearing, not whether defendant was or was not mentally competent. Following supplemental briefing, we conclude that the evidence was sufficient to raise such a doubt. Because a trial court has "no power to proceed with the trial once a doubt arises as to the sanity of the defendant," the error is prejudicial per se and reversal is required. (Pennington, at p. 521; see § 1368.) Accordingly, we will reverse defendant's conviction.
Although the title of section 1368 refers to "sanity," the statute itself refers to "mental competence."
PROCEDURAL HISTORY
A jury convicted defendant of six counts of lewd acts with a child under the age of 14 years (§ 288, subd. (a); counts 1, 2, 3, 5, 6, 7) and one count of oral copulation with a child under the age of 10 years (§ 288.7, subd. (b); count 4). On count 4, the jury was given the option of finding defendant guilty either of orally copulating the victim or having the victim orally copulate him. The jury found him guilty of having the victim orally copulate him and not guilty on the alternate theory.
The court sentenced defendant to a determinate term of 16 years in state prison for the violations of section 288, subdivision (a), followed by an indeterminate term of 15 years to life in state prison on count 4.
Defendant filed a timely notice of appeal.
FACTUAL HISTORY
Because the sole issue we address in this appeal does not require any analysis of the evidence, a brief statement of the underlying facts suffices.
The crimes were alleged to have taken place between 2007 and 2010. Defendant was the boyfriend of the victim's mother, and during the relevant period, he lived with the victim, her mother and her two brothers. The victim was between the ages of seven and 10 years at the time. During that time, defendant often cared for the victim while her mother was at work and her brothers were out of the house. He took advantage of their absences to molest the victim.
The victim did not disclose the abuse to her mother until she was 13 years old. By then, defendant no longer lived with them. The mother reported the abuse to the police. A detective assisted the mother in planning and executing a pretext call to defendant, which was recorded. During the lengthy conversation, defendant first denied having molested the victim but ultimately admitted having committed the acts she had described.
LEGAL ANALYSIS
A. The Competency Statutory Scheme, Due Process, and the Standard of Review
Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a person who is mentally incompetent. (People v. Sattiewhite (2014) 59 Cal.4th 446, 464.) A person is incompetent to stand trial "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) Defendant contends that the trial court's ruling that he was mentally competent to stand trial violated his constitutional right to due process because it was not supported by substantial evidence. As noted above, however, procedurally, the issue before the trial court was not whether defendant was competent to stand trial but whether there was substantial evidence that defendant might be mentally incompetent and was therefore entitled to a full competency hearing.
Section 1368 provides that a competency hearing is required when the trial court declares a doubt as to the defendant's competence to stand trial. (§ 1368, subd. (a).) Despite the wording of section 1368, however, the California Supreme Court has declared that a defendant is entitled to a section 1368 hearing as a matter of right whenever the court is presented with substantial evidence of present mental incompetence. (People v. Mickel (2016) 2 Cal.5th 181, 195 (Mickel).) "On review, our inquiry is focused not on the subjective opinion of the trial judge, but rather on whether there was substantial evidence raising a reasonable doubt concerning the defendant's competence to stand trial. [Citation.] Evidence may be substantial even where it is contested or presented by the defense. [Citation.] A trial court reversibly errs if it fails to hold a competency hearing when one is required under the substantial evidence test. [Citation.]" (Ibid.)
Section 1368 provides: "(a) If, during the pendency of an action and prior to judgment, or during revocation proceedings for a violation of probation, mandatory supervision, postrelease community supervision, or parole, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.
"(b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court.
"Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.
"If a jury has been impaneled and sworn to try the defendant, the jury shall be discharged only if it appears to the court that undue hardship to the jurors would result if the jury is retained on call.
"If the defendant is declared mentally incompetent, the jury shall be discharged."
The Attorney General initially argued that we must deferentially review the trial court's determination as to whether there is substantial evidence of incompetence so as to require a full competency hearing. In her supplemental briefing, she cites and quotes Mickel, supra, 2 Cal.5th 181, which was decided shortly before the parties filed their supplemental briefs. She appears to have abandoned that contention.
B. Application to the Instant Case
In this case, the issue arose as follows: On the morning of the third day of testimony, the bailiff informed the court that defendant had indicated that he did not want to come into the courtroom. The bailiff did not disclose whether defendant gave any reason. Defense counsel waived defendant's presence for that day's proceedings. That afternoon, counsel informed the court that he had a doubt as to defendant's competency to stand trial. He stated that during the previous day's proceedings, defendant "was having a hard time keeping it together, and I had to constantly pat him on the back and say, are you okay, hang in there." The court responded that defendant's emotional response to listening to the evidence, which included the victim's testimony and the recorded pretext call with the victim's mother, was understandable. For that reason, the court was not "comfortable" suspending the proceedings "unless somebody that knows a lot more about psychology and psychiatry than any of us do has an opportunity to go ahead and meet with the defendant." The court said that after the afternoon's planned testimony, which it expected to be brief, it would have defendant brought up from the holding cell and allow defense counsel, his supervisor "and anybody else he chooses" to confer with defendant "so they can be [in] a better position to indicate to the court" whether they believed that defendant was not mentally competent. If defense counsel reported that he believed defendant was not competent, the court would arrange for a psychiatrist or psychologist to interview defendant and to be prepared to testify on the following Monday morning as to defendant's competency. Defense counsel objected to the court not suspending the proceedings, but the court repeated that it did not consider suspension of the proceedings and initiation of a full competency hearing appropriate "given my concerns and my reservations about [defendant's] conduct and the timing of that conduct," i.e., that the court did not, at that point, entertain a doubt as to defendant's competence.
These events took place on Wednesday, April 22, 2015. The court had already decided that because a juror had a medical appointment for his or her child on Thursday and the court is always dark on Fridays, trial proceedings would be recessed until Monday.
Later that day, defense counsel reported that he and his supervisor had spoken to defendant. Defendant told them he was hearing voices that interfered with his train of thought, in spite of the antipsychotic medication he was taking. Because of the voices, counsel said, defendant was not able to assist in his defense. The court again expressed a doubt as to whether there was substantial evidence that defendant was mentally incompetent. It stated that it would proceed as planned, by appointing a psychiatrist or psychologist to interview defendant and testify the following Monday. It would put the doctor on the witness stand and allow both parties to ask any questions they wished. The court said that it was not required to do so, but felt that "in this situation it wouldn't be a bad idea."
The court appointed Dr. Chuck Leeb, a psychologist, to assess defendant's mental competence. Dr. Leeb submitted a written report and then testified. We will describe Dr. Leeb's testimony in detail below, but for purposes of setting forth the history of the proceedings, it suffices to say that Dr. Leeb testified that defendant was schizophrenic and hearing voices, and that he had an irrational but genuine fear of the prosecutor, sufficient to cause a "flat out panic response" at the thought of being in the prosecutor's presence. Based on his understanding of the legal requirements for competency to stand trial, however, he concluded that defendant was competent.
The report is sealed, and we do not quote from it. Dr. Leeb's testimony was not sealed.
Based on Dr. Leeb's testimony and on its own observations of defendant during the trial, the court ruled that defendant was competent to stand trial.
The Attorney General asserts that the trial court found that there was insufficient evidence to raise a doubt as to defendant's competence to stand trial. That is incorrect.
C. Limited Incompetence
Dr. Leeb's conclusion that defendant was competent was based on his understanding that under the law, a defendant is competent if he or she is capable of understanding the proceedings and assisting defense counsel. However, in People v. Stankewitz (1982) 32 Cal.3d 80 (plur. opn.) (Stankewitz), the California Supreme Court recognized the concept of "limited incompetence," i.e., that a defendant who has the cognitive ability to understand the proceedings and could otherwise rationally assist in his or her defense is nevertheless legally incompetent if a paranoid delusion prevents him or her from doing so.
In that case, the defendant suffered from a paranoid delusion focused on his public defender and the public defender's office in general. Among other things, defendant believed that his public defender was in collusion with the prosecutor. (Stankewitz, supra, 32 Cal.3d at p. 88.) After a "fundamental dispute" as to what defense should be presented came to a head, defense counsel informed the court that he believed that the defendant's position was irrational and was the product of a mental condition. The court appointed a psychiatrist to examine the defendant concerning his competency to stand trial. The doctor testified that the defendant's paranoid delusion prevented the defendant from assisting in his defense in a rational manner. (Ibid.) He also gave the opinion that the defendant might be able to rationally assist a private attorney if one were appointed for him. (Id. at p. 92.) The trial court acknowledged that the defendant could not cooperate with a public defender in a rational manner, but "chose to cast the issue in terms of whether there should be a substitution of counsel." (Ibid.) Nevertheless, the trial court denied the substitution, and defendant proceeded to trial "with a counsel [he] was unable to rationally assist." (Ibid.)
The California Supreme Court held that because there was substantial evidence indicating that defendant could not rationally assist his attorney because of his paranoid delusion, the question of the defendant's competence "should have been determined in a full competency hearing conducted as required by sections 1367 and 1368." (Stankewitz, supra, 32 Cal.3d at p. 93.) The court held that the existence of potentially conflicting evidence did not relieve the trial court of the duty to conduct a competency hearing and that reversal of defendant's conviction was mandatory. (Id. at pp. 91-94.)
D. Reasonable Doubt as to Defendant's Competence Under Stankewitz
Dr. Leeb's testimony constituted substantial evidence sufficient to raise a reasonable doubt as to whether defendant could rationally assist his attorney because of his paranoid delusion concerning the prosecutor. Dr. Leeb stated initially that his basic conclusion was that defendant was competent to stand trial, but that "the conclusions are really much more complicated than it seems" and that "there are a number of issues involved" with that conclusion. He testified that defendant understood the proceedings and was willing to assist his attorney. However, he testified, defendant was schizophrenic and was having paranoid delusions and persecutory delusions. Defendant's refusal to enter the courtroom resulted from his fear of the prosecutor. He reacted viscerally to her, seeing her as a monster. Dr. Leeb testified that this fear was the result of defendant's "very dysfunctional personality structure," consistent with empathic deprivation during childhood, meaning that the parent or primary caregiver wasn't able to instill in him the ability to regulate anxiety. In some people, if the primary caregiver is perceived by the infant as "being scary," this can result in what Dr. Leeb described as "the traumatic image." Unless it is dealt with through intensive therapy, this "implicit memory of a scary face holds forever," and when that image comes up, the person can go into the "flight and fight [sic] response" or can go into a panic mode.
Defendant explained to Dr. Leeb that when he looked at the prosecutor, he saw "this evil darkness, like an attacking vampire. I get so scared I can't sit at the table. I'm jerking all around. I wanted to dive under the table. I won't go into the courtroom." Dr. Leeb continued, "When [defendant] stated, 'I see this evil darkness,' he shrank down into his chair, his eyes went wide, and you can [sic] see the fear response on his face, and his voice got high and he says [sic], 'I'm not going to go in there,' and he went like this with his arms (indicating), in what appeared to be a protective gesture." Dr. Leeb then demonstrated the "attacking vampire," as defendant had described how he saw the prosecutor. After calming him down and asking some innocuous questions, Dr. Leeb suddenly mimicked the face defendant had made. Based on defendant's instantaneous reaction, Dr. Leeb believed that defendant's fear was real, that his response was to "an image that [went] back to [defendant's] infancy," and that he was not malingering. Dr. Leeb said it would be "very difficult to get him into court because of—it's a flat out panic response."
Dr. Leeb went on to testify that although defendant's refusal to enter the courtroom was the product of his mental illness, it was nevertheless "on some level" a matter of choice. However, when asked by defense counsel whether he had focused on defendant's ability to cooperate with counsel—and counsel specifically stated that he wanted defendant to be present in the courtroom—in deciding whether defendant was competent, Dr. Leeb replied, "I asked him do you feel that you can go into the courtroom because your attorney wants you to go there and he said I don't think so. And I said, why not? And he said, that really scares me. I have difficulty seeing fear and competency. I don't know what's required legally, making an assumption you folks know your job real well. So I don't know what it means if somebody says I can't—I'm choosing not to show up." He also testified, "I'm not a physician, but if a physician asked [sic] could he be given medications to control his level of anxiety, I would not be surprised that the response would be yes. His level of anxiety could [interfere] with his, I guess, ability to cooperate . . . ." (Italics added.)
Even though Dr. Leeb believed that defendant was making a choice, his testimony strongly suggests otherwise, i.e., that defendant's "flat out panic response" was sufficiently severe to prevent him from exercising his ability to choose to enter the courtroom and that anti-anxiety medication might be necessary to enable him to make that choice. Moreover, despite Dr. Leeb's initial statement that defendant was competent to stand trial, that conclusion is in conflict with Dr. Leeb's own observations. The Attorney General urges that we must accept Dr. Leeb's conclusion. However, the value of expert opinion evidence does not lie in the bald conclusion but rather in the factors considered and the validity of the reasoning employed in reaching the conclusion. (People v. Bassett (1968) 69 Cal.2d 122, 141.) "'[T]he law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.' [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 618, overruled on other grounds in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.) Taken all together, Dr. Leeb's testimony is clearly sufficient to raise a doubt as to whether defendant was able, as a result of his mental condition, to rationally assist in his defense. (Mickel, supra, 2 Cal.5th at p. 195.)
We also disagree with the Attorney General's contention, based on People v. Laudermilk (1967) 67 Cal.2d 272, that we cannot go "beyond" an expert's testimony that a defendant is competent to stand trial to infer that the defendant might not be competent. However, in Laudermilk, the two experts both stated unequivocally that the defendant was competent, and there was no evidence to the contrary. (Id. at pp. 286-287.) In contrast, Dr. Leeb's testimony was internally inconsistent, and ultimately supported solely the conclusion that there was doubt as to defendant's ability to rationally assist in his defense.
The Attorney General also contends that we should not disregard the trial court's observations over the course of voir dire and three days of trial. The court observed that after the pretext call was played, defendant's behavior changed, leading the court to conclude that defendant's reluctance to return to the courtroom was based on defendant's feeling that "things weren't going well." However, once the court has been made aware of substantial evidence that the defendant might not be competent to stand trial, the court is compelled to hold a full competency hearing, despite the existence of evidence to the contrary. This is true even when the trial judge personally has no doubt as to the defendant's competence: "On review, our inquiry is focused not on the subjective opinion of the trial judge, but rather on whether there was substantial evidence raising a reasonable doubt concerning the defendant's competence to stand trial." (Mickel, supra, 2 Cal.5th at p. 195.) Once such evidence has been presented, the trial court has no discretion not to order a competency hearing, even if he or she personally has no doubt as to the defendant's competency. (Pennington, supra, 66 Cal.2d at pp. 518-519.) Moreover, the trial court's observations of defendant in the courtroom preceded the point at which defendant was apparently no longer able to overcome his fears sufficiently to enter the courtroom. A person's mental state is not static, and even after a finding of competence has been made, circumstances may change so that a genuine doubt is raised as to the defendant's continuing competency. (People v. Jones (1991) 53 Cal.3d 1115, 1153.) A competency hearing is required at any time prior to judgment, if the court is presented with substantial evidence that the defendant might not be mentally competent at that time, regardless of any finding that the defendant was mentally competent at an earlier point in the proceedings. (Ibid.) Accordingly, because Dr. Leeb's testimony constituted substantial evidence that defendant might not have been mentally competent to stand trial, the court erred in not ordering a full competency hearing. (Mickel, supra, 2 Cal.5th at p. 195.)
We emphasize that the evidence is sufficient only to show that defendant might not be able to assist his attorney because of his mental condition. Not all paranoid delusions render a defendant incompetent (see, e.g., People v. Halvorsen (2007) 42 Cal.4th 379, 401-403), and it is arguable that defendant's inability to be in the courtroom did not render him unable to assist in his defense in a meaningful way. Those are issues that should have been explored in a competency hearing.
Although it could be argued that defendant was effectively given a full hearing on the question of competency, in which his attorney was allowed to cross-examine Dr. Leeb and to argue on defendant's behalf, and that reversal and remand for further proceedings is therefore not necessary in order to protect defendant's due process rights, we note that the California Supreme Court rejected this argument in Pennington, supra, 66 Cal.2d 508. In that case, the court addressed the argument "that the proceedings conducted by the judge when he took evidence to aid him in deciding if a doubt of defendant's [competence] existed constitute the 'hearing' on the issue of competence to stand trial which Pate v. Robinson [(1966) 383 U.S. 375, 385] requires." (Pennington, at p. 520.) The court stated, "We disagree. In [Pate v.] Robinson, where the United States Supreme Court found a violation of due process of law in failure to conduct a hearing on present sanity, the Illinois trial judge had also taken certain evidence the only purpose of which could have been to guide him in determining if a doubt of Robinson's competence to stand trial existed. [Fn. omitted.] The distinction between a complete hearing to decide if an accused is competent to stand trial and special proceedings conducted by a judge to determine whether he should declare that a doubt of the accused's present sanity exists is well recognized in this state. [Citations.] The decision of the United States Supreme Court in Pate v. Robinson demonstrates that the type of 'hearing' which due process requires when the accused has come forward with substantial evidence of present insanity has not been accorded the accused when the judge merely takes evidence to guide him in determining if he should declare the existence of a 'doubt.' A 'hearing' is generally understood to be a proceeding where evidence is taken to the end of determining an issue of fact and a decision made on the basis of that evidence. [Citation.] Such a full hearing on the present sanity issue, manifestly the type of hearing the United States Supreme Court was referring to, is provided for by section 1368 of the Penal Code and was erroneously denied to defendant Pennington in the instant case." (Pennington, at pp. 520-521.)
The hearing in this case also did not afford defendant due process, as discussed in Pennington, because the issue the court actually adjudicated was not the stated subject of the hearing, i.e., whether there was sufficient evidence to warrant a hearing on competence to stand trial. (Pennington, supra, 67 Cal.2d at pp. 520-521.) The issue of defendant's actual competence was not within the scope of the hearing. The hearing also failed to comply with the requirements of section 1369, which sets forth the procedure for conducting competency hearings. Section 1369 provides that each side is entitled to present rebuttal evidence. (§ 1369, subd. (d).) Defense counsel had no opportunity to do so. Nor was he given the opportunity to prepare either to cross-examine Dr. Leeb or to rebut Dr. Leeb's conclusion that defendant was competent to stand trial and was making a volitional choice not to participate. Counsel were not given Dr. Leeb's report to review until Dr. Leeb had already taken the witness stand. Furthermore, he had no opportunity to consult with a physician to determine whether treatment with anti-anxiety medication would have permitted defendant to overcome his fear, as Dr. Leeb suggested. For all of these reasons, the hearing was not the equivalent of a full competency hearing, to which defendant was entitled. Accordingly, reversal is required. (Pennington, supra, 66 Cal.2d at p. 521.)
In pertinent part, section 1369 provides: "Except as stated in subdivision (g), a trial by court or jury of the question of mental competence shall proceed in the following order: [¶] (a) The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution. The examining psychiatrists or licensed psychologists shall evaluate the nature of the defendant's mental disorder, if any, the defendant's ability or inability to understand the nature of the criminal proceedings or assist counsel in the conduct of a defense in a rational manner as a result of a mental disorder and, if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to mental competence. If an examining psychologist is of the opinion that antipsychotic medication may be medically appropriate for the defendant and that the defendant should be evaluated by a psychiatrist to determine if antipsychotic medication is medically appropriate, the psychologist shall inform the court of this opinion and his or her recommendation as to whether a psychiatrist should examine the defendant. The examining psychiatrists or licensed psychologists shall also address the issues of whether the defendant has capacity to make decisions regarding antipsychotic medication and whether the defendant is a danger to self or others. If the defendant is examined by a psychiatrist and the psychiatrist forms an opinion as to whether or not treatment with antipsychotic medication is medically appropriate, the psychiatrist shall inform the court of his or her opinions as to the likely or potential side effects of the medication, the expected efficacy of the medication, possible alternative treatments, and whether it is medically appropriate to administer antipsychotic medication in the county jail. . . . [¶] . . .
"(b) (1) The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence. [¶] (2) If the defense declines to offer any evidence in support of the allegation of mental incompetence, the prosecution may do so.
"(c) The prosecution shall present its case regarding the issue of the defendant's present mental competence.
"(d) Each party may offer rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention.
"(e) When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury."
Because reversal is required on this ground, we need not address the remaining issues defendant raises.
DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.