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People v. Laster

California Court of Appeals, Second District, Second Division
Sep 25, 2008
No. B201367 (Cal. Ct. App. Sep. 25, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. CLARENCE EARL LASTER, Defendant and Appellant. B201367 California Court of Appeal, Second District, Second Division September 25, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County No. GA066760. David S. Milton, Judge.

Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

CHAVEZ, J.

Clarence Earl Laster (defendant) appeals from the judgment entered following a jury trial in which he was convicted of transporting a controlled substance (Health & Saf. Code, § 11352) and possessing for sale cocaine in the base form (Health & Saf. Code, § 11351.5). The trial court made findings that he had four prior convictions of enumerated narcotics offenses (Health & Saf. Code, § 11370.2, subd. (a)), that he had served a separate prison term (Pen. Code, § 667.5, subd. (b)), and that he had a prior juvenile adjudication of a serious or violent felony, which qualified him for sentencing pursuant to the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12).

Defendant requests that (1) this court review the in camera discovery Pitchess proceedings (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)) as authorized by the decision in People v. Mooc (2001) 26 Cal.4th 1216 (Mooc). He contends that: (2) admission of the laboratory report denied him his Sixth Amendment right to confrontation; (3) the other crimes evidence was inadmissible; (4) the decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Cunningham v. California (2007) 549 U.S. 270 (Cunningham) preclude the use of a juvenile admission of robbery as the predicate for three-strikes sentencing; (5) there is Penal Code section 654 error; and (6) he is entitled to additional presentence credit.

We modify the judgment by ordering the term imposed for the possession offense stayed and by ordering 18 additional days of presentence credit. As modified, the judgment is affirmed.

FACTS

At about 8:30 p.m. on August 20, 2006, uniformed Pasadena Police Officer Javier Aguilar and his partner, Officer Jack Preston, pulled their marked patrol vehicle into the parking lot of a liquor store on Orange Grove Boulevard in Pasadena. Officer Aguilar saw defendant, who was sitting in a parked car, apparently engaged in a hand-to-hand sale with a male pedestrian who had the appearance of a drug user. Believing that he had observed a drug transaction, the officer approached defendant. He had eye contact with defendant.

The pedestrian quickly walked off, and defendant hid his face in the crook of his arm, and started to drive off. Officer Aguilar yelled, “Stop,” but defendant quickly drove out of the liquor store’s parking lot. Officers Aguilar and Preston ran to their patrol vehicle and followed defendant, who turned eastbound on Orange Grove Boulevard.

At the next block, Marengo Avenue, Officer Aguilar observed defendant toss an item out his window and turned southbound. Thereafter, defendant was stopped. Officer Aguilar radioed a helicopter to respond immediately to the intersection for observation and asked a ground unit to search for contraband.

The officers approached defendant in his car and asked, “What did you dump?” Defendant refused to acknowledge that he had tossed anything out of his car. Defendant told them that he was on parole for selling cocaine. Officer Aguilar had defendant get out of his car and searched him. A cellular telephone was found in a pants pocket, as well as crumpled-up currency in small denominations in the amount of $152.

On Orange Grove Boulevard, about 150 feet west of the intersection, Officer Paul McKinney found two plastic bindles sitting in a traffic lane. One of these bindles contained 3.55 grams of cocaine in the base form; the other bindle apparently contained marijuana.

There is no evidence that a chemical analysis was performed on the substance resembling marijuana, and defendant was not charged with possessing marijuana.

The officers arrested defendant and impounded his car. Defendant waived his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Defendant admitted that he had tossed the bindles onto the roadway; his claim was that he had purchased the illicit narcotics for $50 and that he intended to sell them for $100. He said that he needed money to pay for his wife’s surgery. He offered to serve as an informant to “work the case off.”

At trial, Officer Aguilar, an experienced police officer, opined that the bindle of base cocaine had a street value of $340 and that defendant had possessed the bindles for the purpose of sale.

The prosecution introduced testimony that on two prior occasions, in 1999 and 2003, defendant was discovered possessing cocaine in the base form by police. On these occasions, the circumstances of the possession suggested that defendant intended to possess the substances for the purpose of sale.

Defendant exercised his right not to testify.

In defense, an investigator was called to impeach the officers’ testimony by setting out with photographs and measurements the exact dimensions of the liquor store parking lot and the Orange Grove Boulevard intersection.

During his closing comments, defense counsel argued officer credibility and reasonable doubt.

DISCUSSION

I. Review of the In Camera Pitchess Proceedings

Defendant requests a review of the in camera Pitchess proceedings in the trial court pursuant to the decision in Mooc.

We conducted the requested review and find no error.

A. Background

Before trial, defendant filed a motion requesting discovery from Officer Aguilar’s personnel records with respect to illegal seizures, false arrest, harassment, and the preparation of false and/or misleading statements in investigation reports, and of acts of dishonesty. To support the motion, defense counsel declared that Officer Aguilar claimed that defendant made admissions and confessions that defendant now denied had been made.

The trial court granted defendant’s Pitchess motion with respect to prior complaints that the officer had reported confessions when in fact no such confession had been made. The trial court then conducted an in camera review of various potentially discoverable items found in the officer’s personnel records and determined that no complaints contained therein were discoverable. After the in camera hearing, the trial court resumed proceedings in open court and told trial counsel that the deputy’s personnel records contained no discoverable information.

B. The Analysis

We conducted a review of the in camera proceedings contemplated by Mooc. The record is adequate to permit meaningful appellate review. (People v. Prince (2007) 40 Cal.4th 1179, 1285-1286.) We independently determined from the entire record and from the sealed in camera proceedings that the trial court properly exercised its discretion when it concluded that none of the information presented to the trial court by the Pasadena Police Department’s representative was discoverable.

II. The Forensic Evidence

Days after the arrest, on August 26, 2006, a sheriff’s chemist, Gary Chasteen, analyzed the contents of one of two bindles of contraband recovered. Chasteen’s analysis disclosed that the bindle contained 3.55 grams of cocaine in the base form. Before the trial commenced, Chasteen had retired from government service. To prove the narcotic nature of the substance, Chasteen’s coworker, another chemist, Edmund Ting, testified as a trial witness in order to lay the foundation for the admission of the results of the chemical testing on the bindle as they were contained in Chasteen’s laboratory report. Ting also testified to the contents of Chasteen’s original notes of the August 26, 2006 analysis. Ting said that Chasteen had concluded, as stated in his notes, that the contraband in one of the recovered bindles was cocaine in the base form. Ting asserted that the signed laboratory report of August 28, 2006, contained the same conclusion.

Evidence Code section 1271 provides, as follows: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”

Defendant contends that the use of the laboratory report (exhibit 13), violated his Sixth Amendment right to confrontation of witnesses. In his reply brief, defendant additionally asserts that Ting’s testimony based on Chasteen’s original notes might have been admissible with a further factual foundation, but the prosecutor never asked the trial court to admit the copy of Chasteen’s original notes into evidence, and the notes are not part of this trial or appellate record. Furthermore, Ting’s testimony reciting the conclusions stated in those notes and the report is inadmissible.

The contention is well taken, but will not result in a reversal.

A. The Relevant Legal Principles

In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the high court repudiated Ohio v. Roberts (1980) 448 U.S. 56, which permitted hearsay evidence in criminal cases if the hearsay fell within a traditional exception or was particularly trustworthy. Crawford held that “testimonial” statements, including at least some “police interrogations,” are barred from the use as trial evidence under the Sixth Amendment unless the declarant is “unavailabl[e]” and the defendant had “a prior opportunity for cross-examination.” (Crawford, supra, at p. 68; see id. at pp. 52, 53 & fn. 4, 54.)

In another case, Davis v. Washington (2006) 547 U.S 813, the court clarified the meaning of “testimonial.” It held that “[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at p. 822.)

In People v. Geier (2007) 41 Cal.4th 555 (Geier), the California Supreme Court addressed the admissibility of the testimony of a DNA expert who testified at trial to the results of a DNA analysis conducted by another expert. (Id. at pp. 594-596, 607.) In Geier, the issue as framed by the court was whether the admission of scientific evidence, such as laboratory reports, constituted a testimonial statement that is inadmissible unless the person who prepared the report testifies, or Crawford’s conditions—unavailability and cross-examination—are met. The Geier court held that such reports in the conditions described in that decision may be nontestimonial, and thus admissible, even when the expert conducting the analysis fails to testify. (Geier, supra, at p. 607.)

The Geier court reasoned that where the scientific report records observations regarding the receipts of samples, the preparation of the samples for analysis, and the results of the analysis as it is actually being performed, the observations in the report are nothing more than a contemporaneous recordation of observable events and are nontestimonial. (Geier, supra, 41 Cal.4that pp. 605-606.) The court acknowledged that one expert cannot testify to another expert’s opinion; such testimony is hearsay. (Id. at p. 608, fn. 13, citing People v. Campos (1995) 32 Cal.App.4th 304, 308.) Nevertheless, a testifying expert can give his or her opinion as to the results of an analysis where he does so by forming his own independent opinion based on the information contained in the nontestifying expert’s report. (Geier, supra, at p. 608, fn. 13.)

The court in Geier explained why such reports were admissible. It said that the records of a laboratory analysis are generally made during routine, nonadversarial processes meant to ensure an accurate analysis. The notes and report are generated pursuant to standardized scientific protocols developed by the laboratory in question. These analyses are conducted as part of the expert’s employment, not in order to incriminate a criminal defendant. The notes, forms, and reports of the analyzing expert are not themselves accusatory, as the results of such tests may turn out to be exonerating, as well as incriminating. The accusatory opinions adduced at trial derive not from the nontestifying expert’s laboratory notes and report, but from a testifying expert, who may be cross-examined. By following a laboratory’s protocols of noting the process of analysis, the expert does not “bear witness” against defendant. A laboratory’s protocol, and the resulting raw data acquired is not accusatory; rather, such analyses are neutral. (Geier, supra, 41 Cal.4th at p. 607.)

B. The Analysis

Here, it appears that the testifying expert could have testified to a proper foundation for Chasteen’s laboratory report and notes, but there was a failure to comply with the fine points of the decision in Geier. We conclude that Chasteen’s August 28, 2008 laboratory report appears to have been prepared two days after the analysis as a formality in contemplation of the court proceedings. Consequently, as a record of past events, it was testimonial, and it was inadmissible. Ting set out a proper foundation for the admission of Chasteen’s original notes stating the results of testing, but the prosecutor neglected to ask the trial court to admit the notes into evidence. Additionally, Ting parroted Chasteen’s conclusions as they were contained in the notes and report, instead of testifying to his own opinion based on Chasteen’s notes and the instrument printout of the gas chromatograph mass spectrometer test. Thus, his testimony was inadmissible hearsay. (People v. Campos, supra, 32 Cal.App.4th at p. 308.)

Nevertheless, these errors do not require a reversal. Defendant’s hearsay and “lack of foundation” objections were directed to state law errors. Defendant did not expressly object on confrontation grounds. Consequently, the objections failed to preserve for appeal the constitutional claim of a Sixth Amendment denial of confrontation. (People v. Partida (2005) 37 Cal.4th 428, 434-435; accord, People v. Tafoya (2007) 42 Cal.4th 147, 166; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19; People v. Alvarez (1996) 14 Cal.4th 155, 186.) The provision in Penal Code section 1202 that hearsay that amounts to a denial of the right to confrontation is inadmissible in California did not transform defendant’s hearsay objection into a constitutional claim. Defendant raises no challenge on appeal to the admissibility under state law of the laboratory report; nor does it appear he could successfully do so—Ting testified to a foundation demonstrating the notes and the laboratory report constituted exceptions to the hearsay rule as they were business records or the records of a public employee.

We note that Crawford was decided two years prior to the trial court’s July 24, 2007 ruling. The decision in Geier was filed on July 7, 2007.

Furthermore, the errors are harmless. (Chapman v. California (1967) 386 U.S. 18, 26.) The evidence established defendant’s possession of the bindles. Defendant treated the contraband as if it were narcotic in nature, and he admitted the transportation offense and confessed to possessing base cocaine for sale. Our independent review of the entire record discloses that the inadmissible evidence—the content of the notes, the laboratory report, and Ting’s inadmissible testimony reciting Chasteen’s opinion—were so inconsequential that they had no effect on the verdict. (Geier, supra, 41 Cal.4th at p. 608.)

III. Other Crimes Evidence

Defendant contends that the use of other crimes evidence should have been excluded pursuant to Evidence Code section 352 as it was unduly prejudicial and cumulative.

We disagree.

A. Background

Before trial, the People asked to have admitted into evidence two instances of prior misconduct. During these incidents, the police had discovered defendant possessing cocaine in the base form for the purpose of sale. The prosecutor argued that the prior conduct was relevant to proving knowledge and intent. The prosecutor claimed that she understood that the defense would be attempting to impeach the officer in an effort to obtain an acquittal. She claimed that such a defense placed the intent to sell at issue.

Defense counsel argued that without knowing the underlying facts of the prior incidents, it was impossible to tell whether the prior incidents were relevant. Further, on the issues of knowledge and intent, the other crimes evidence was cumulative as defendant had confessed his intent to sell.

The trial court admitted the prior incidents of possession for sale.

At trial, Officer Carolyn Gordon testified that on March 9, 1999, she had stopped defendant in his car. Thereafter, she had transported him to the police station. After transportation, she found cocaine residue in the rear seat of her police vehicle. During a booking strip search, the booking officer recovered a baggie of cocaine from defendant. Defendant was held temporarily in a booking detox cell. After he was removed from the cell, the officers found white residue on its floor, and there was white residue that looked like smashed cocaine all over the bottom of one of defendant’s shoes. A preliminary test was performed on the white substances recovered, which was positive for cocaine base; the substances recovered also had the appearance of cocaine base.

After finding the cocaine base all over the booking area, Pasadena police officers executed a search warrant at defendant’s apartment. They found 5.8 grams of cocaine in the base form wrapped in plastic in his apartment, as well as razor blades, cash, pagers, cellular telephones, scales, and address books listing the names of buyers and sellers. In the apartment, there was no personal-use paraphernalia, such as a cocaine pipe.

Officer Mark Mendenhall testified at trial that on February 21, 2003, he stopped defendant in a car, defendant was arrested, and the car was searched. The officer found a plastic wrapper containing 25 rocks of base cocaine, about 0.25 grams of “crack” or rock cocaine. Defendant had no personal-use paraphernalia with him indicating that he possessed the cocaine for personal use.

The contraband Officer Mendenhall seized was booked into evidence. During the analysis, the chemist found two containers containing respectively, 9.21 grams and 0.32 grams, of solid substance that contained cocaine in the base form. There was no cutting material in the sample tested.

B. The Analysis

Evidence of specific instances of uncharged prior conduct is generally inadmissible when offered to prove that a person acted in conformity with that character on a particular occasion. (Evid. Code, § 1101, subd. (a).) Such evidence of prior acts is admissible, however, to demonstrate facts other than disposition, such as knowledge or intent. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Thus, for instance, a prior narcotics sale may tend to indicate a knowledge of the substance being sold as well as the intent to sell it. (People v. Ellers (1980) 108 Cal.App.3d 943, 953.)

“In general, we have explained that ‘[t]he admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.’ [Citation.] The main policy that may require exclusion of the evidence is the familiar one stated in Evidence Code section 352: Evidence may be excluded if its prejudicial effect substantially outweighs its probative value. Because substantial prejudice is inherent in the case of uncharged offenses, such evidence is admissible only if it has substantial probative value. [Citation.] This determination lies within the discretion of the trial court. [Citation.]” (People v. Kelly (2007) 42 Cal.4th 763, 783.)

A defendant’s not guilty plea puts in issue all the elements of the charged offenses. (People v. Catlin (2001) 26 Cal.4th 81, 146.) Evidence of prior crimes that tend to prove an element of the currently charged offense is admissible, regardless of whether those elements are actively disputed by the defense at trial. (People v. Thornton (2000) 85 Cal.App.4th 44, 48-49; People v. Ellers, supra, 108 Cal.App.3d at p. 953.)

Evidence Code section 352 gives the trial court discretion to exclude evidence if the probative value of the evidence is “substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We review the trial court’s ruling for an abuse of discretion. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

In this instance, the trial court properly exercised its discretion by admitting the other crimes evidence. The evidence’s relevance was strong. Based on the pretrial Pitchess proceedings, the prosecutor reasonably anticipated that defendant might attack the officer’s claim that defendant made the admissions and confession. Indeed, defendant’s trial counsel’s declaration in support of the Pitchess motion denied that defendant ever confessed to possession of cocaine. Furthermore, the defense failed to ask the trial court immediately before the use of the other crimes evidence to reevaluate whether that evidence was unduly prejudicial and cumulative. Defendant had been convicted of the prior offenses. The other crimes were not remote in time nor was that evidence stronger or more inflammatory than the testimony concerning the current offenses. This was a drug case, where it is unlikely that the jury would return a verdict in order to punish defendant for past misconduct. In these circumstances, the trial court had ample discretion to admit the testimony. (See People v. Balcom (1994) 7 Cal.4th 414, 426-427; People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405.)

IV. The Claim of Cunningham Error

Defendant contends that because he was not afforded a jury trial in connection with his juvenile adjudication (see Apprendi, supra, 530 U.S. 466 and Cunningham, supra, 549 U.S. 270), the trial court violated his constitutional rights by using his prior admission of robbery in juvenile court to double his sentence.

We disagree.

A. Background

In 1984, when defendant was 16 years old, he admitted the allegations in a juvenile petition alleging robbery (Pen. Code, § 211) and assault with a firearm (Pen. Code, § 245, subd. (a)(2)). In the present case, the People alleged in the information that the admissions of these juvenile offenses required enhanced sentencing pursuant to the three strikes law. Based on evidence that defendant had previously admitted the robbery and assault with a firearm during juvenile proceedings, the trial court found that he had two strikes within the meaning of the three strikes law. At sentencing, the People agreed to strike the assault offense in the interests of justice, and the trial court agreed to sentence defendant as a second strike offender on the basis of his previous admission of robbery.

The minute orders from the juvenile court established that defendant was 16 years of age when he committed the offenses underlying that petition. The juvenile court explicitly made a finding that the robbery was a Welfare and Institutions Code section 707, subdivision (b), offense. Defendant had been committed to the California Youth Authority.

The trial court imposed an aggregate term of 20 years in state prison.

B. The Analysis

The issue raised here is presently pending review before the California Supreme Court in People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007 (S154847).

The decision in People v. Smith (2003) 110 Cal.App.4th 1072 (Smith) examined the use of juvenile adjudications of serious or violent felonies after the decisions in Apprendi and U.S. v. Tighe (9th Cir. 2001) 266 F.3d 1187. The Smith court held at page 1079: “‘“By enacting the three strikes law, the Legislature has . . . simply . . . said that, under specified circumstances, a prior juvenile adjudication may be used as evidence of past criminal conduct for the purpose of increasing an adult defendant’s sentence. . . . Since a juvenile constitutionally—and reliably (McKeiver v. Pennsylvania [(1971) 403 U.S. 528, 547)—can be adjudicated a delinquent without being afforded a jury trial, there is no constitutional impediment to using that juvenile adjudication to increase a defendant’s sentence following a later adult conviction.”’ ([People v. ]Bowden [(2002)] 102 Cal.App.4th [387,] 392, quoting People v. Fowler [(1999)] 72 Cal.App.4th [581,] 585-586.)”

The majority of the decisions addressing this issue have agreed with the decision in Smith. We find no flaw in Smith’s reasoning. Consequently, until the California Supreme Court holds otherwise, this court will follow Smith’s decision that a juvenile adjudication or admission may be used as the predicate for enhancement of a sentence.

V. Penal Code Section 654

At sentencing, the trial court imposed two concurrent terms of eight years for the transportation offense and for the possession for sale offense.

Defendant contends that the imposition of concurrent terms for the transportation and the possession for sale offenses was error.

Respondent concedes the error, and we agree. Where a defendant commits a single act of carrying the same type of contraband in his automobile, the act gives rise to two different convictions, but the imposition of but one term of punishment. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583; People v. Lopez (1992) 11 Cal.App.4th 844, 849-850.)

We order the term imposed for the possession offense in count 2 stayed as is required by Penal Code section 654.

VI. Presentence Credit

Defendant contends that the trial court failed to award him 18 days of presentence credit to which he was entitled.

Respondent concedes the error, but brings to this court’s attention that it has discretion as to whether to correct the error on appeal in the interests of expediency, or require defendant to apply to the trial court to correct the error. (See People v. Jones (2000) 82 Cal.App.4th 485, 493.) The current offense is nonviolent (cf. Pen. Code, § 2933.1) and “‘restrictions on the rights of Three Strikes prisoners to earn term-shortening credits do not apply to confinement in a local facility prior to sentencing’” (see People v. Philpot (2004) 122 Cal.App.4th 893, 908). As the parties agree that defendant is entitled to an additional 18 days of presentence credit, this court will order the judgment modified to correct the error.

DISPOSITION

The judgment is modified pursuant to Penal Code section 654 to order the term imposed for the possession offense in count 2 to be stayed. Defendant is also entitled to a presentence credit, as follows: 348 days of actual confinement credit, plus 174 days of conduct credit, totaling 522 days of Penal Code section 2900.5 credit. As modified, the judgment is affirmed.

The superior court shall cause its clerk to prepare and send an amended abstract of judgment reflecting the modifications to the judgment to the Department of Corrections and Rehabilitation.

We concur: BOREN, P. J., ASHMANN-GERST, J.

Evidence Code section 1280 states the following: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”


Summaries of

People v. Laster

California Court of Appeals, Second District, Second Division
Sep 25, 2008
No. B201367 (Cal. Ct. App. Sep. 25, 2008)
Case details for

People v. Laster

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CLARENCE EARL LASTER, Defendant…

Court:California Court of Appeals, Second District, Second Division

Date published: Sep 25, 2008

Citations

No. B201367 (Cal. Ct. App. Sep. 25, 2008)