Opinion
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05NF1500, Gregg L. Prickett, Judge, consolidated with a petition for writ of habeas corpus. Affirmed in part, reversed in part, and remanded for resentencing. Petition denied.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
O’LEARY, J.
Jose Luis Leon appeals from a judgment after a jury convicted him of aggravated assault and street terrorism and found true numerous enhancements. He argues insufficient evidence supports his street terrorism conviction and the true finding on the street terrorism enhancement, and there were sentencing errors. Alternatively, in his petition for writ of habeas corpus, Leon contends he received ineffective assistance of counsel. We ordered consolidation of the petition with the appeal. As we explain below, two of his contentions have merit, and the other is moot. We affirm his conviction for aggravated assault, reverse his conviction for street terrorism and the true finding on the street terrorism enhancement, and remand for resentencing. We deny the petition.
FACTS
Johnny Cabral and Anthony Cabral are brothers. Richard Cabral and Sarah Mesa are their cousins. In 2005, Johnny was dating Danielle Salazar, and Richard was dating Tamara Ulery.
On the evening of April 16, 2005, they all met at the Revolucion Bar in the City of Fullerton. Around 11:00 p.m., Anthony bumped into a man at the bar while returning from the restroom. They stared at each other and told each other to move. The man and a group of approximately six friends, including Leon, also known as “Cat Eyes,” crowded Anthony and tried to push him outside. Johnny walked up, told the men to stop, and pulled Anthony away.
Anthony and Johnny returned to their family and friends. Leon continuously “mad-dogged” Anthony from across the bar. Leon and his friends approached Anthony and asked him to go outside. He said, “no.” One man put his hands on Anthony’s back and tried to push him outside. Richard called the security guard, and he separated the two groups. Johnny told Anthony to go home, and Anthony left.
At 1:30 a.m., when the bar closed, Johnny, Richard, Tamara, Danielle, and Sarah walked to the parking lot. Richard and Tamara went to their car. Johnny, Danielle, and Sarah walked towards their car. While Richard and Tamara were at their car, Leon and a friend walked towards Richard and spoke with him. Leon’s friend repeatedly asked Richard, “Where is your friend?” Richard replied, “‘He left a long time ago. Nobody wants any trouble here.” Leon and his friend backed Richard and Tamara against the car.
At that time, Johnny, Danielle, and Sarah drove by, and Tamara motioned for them to stop. Johnny and Danielle got out of the car and asked what was going on. Leon had his hand in his back pocket. Danielle asked Leon what he had in his pocket, and she said that he would have to go through her to get to Johnny. Leon replied, “I’ll kill you if I have to” and lunged at Johnny.
Sarah and Danielle saw a shiny metal object in Leon’s hand as he hit Johnny with that hand. Leon knocked Johnny and Danielle to the ground and continued hitting Johnny on the head. Every time Leon hit Johnny in the head, blood spurted out. Another member of Leon’s group attacked Richard and threw him over the side of a car.
Richard saw the headlights of an oncoming car and saw someone get out. Tamara and Danielle saw several men get out of the car and began hitting Johnny and Richard. One of the men threw Richard over the side of the car. Tamara and Danielle screamed for help, and Sarah ran down the street and screamed for help. Danielle saw Leon throw something across the parking lot.
Law enforcement officers arrived and saw Leon on top of Johnny punching him. Police arrested Leon and Johnny. Other members of Leon’s group ran. Officers found Tamara’s jacket with a cellular telephone and a bloody industrial size padlock lying on top of it.
Johnny could not remember the events after being beaten, and the next thing he remembered was an officer handcuffing him. He received six stitches to his forehead, five stitches to his left eyebrow, and three staples to the top of his head. Richard received three staples to the back of his head.
An Orange County Sheriff Department forensic scientist performed DNA testing on Leon’s clothing. The blood on his clothing belonged to Johnny.
An amended information charged Leon with aggravated assault (Pen. Code, § 245, subd. (a)(1)) (count 1), street terrorism (§ 186.22, subd. (a)) (count 2). As to count 1, the information alleged Leon personally inflicted great bodily injury (§ 12022.7, subd. (a)), and committed it for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The information also alleged he committed two prior serious or violent felonies (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)), and one prior serious felony (§ 667, subd. (a)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
At trial, the district attorney offered the testimony of Officer Ronald Castillo, a gang expert. As we will explain below more fully, he testified concerning the Sixth Street criminal street gang (Sixth Street), gang customs, Leon’s association with Sixth Street, and his opinion based on a hypothetical question mirroring the facts of this case.
Leon’s defense was the following: he, Nick, Oscar, and Jerry went to the bar. He returned from the restroom and saw his friends talking to someone he did not recognize. He watched them, but could not hear the conversation. Leon did not see the person again that evening. When they left the bar, Leon and Oscar stopped to speak with some women, and Nick and Jerry continued to the car. Oscar told Leon he wanted to speak with someone else, and they walked towards Richard and Tamara and began talking to them. Leon waited for Oscar, but he did not hear the conversation. Leon saw Johnny get out of his car and charge at him. Leon reached for his silver cellular telephone, and Johnny fell on top of him. Leon wrestled to get Johnny off him. Leon claimed he only had the cellular telephone, and not a padlock. He had a set of keys, but none of the keys fit the padlock.
A mathematical expert testified as to the odds of the padlock landing on the jacket. Based on his calculations, if Leon had thrown the padlock, it could not have landed on Tamara’s jacket the way it did and could not have rolled onto the jacket.
Leon testified he was “jumped” into Sixth Street when he was 13 years old. Leon stated he never participated in serious crimes committed by other Sixth Street gang members. Leon explained he did not have any contact with Sixth Street gang members since December 2004, when he was released from prison following a conviction for attempted manslaughter. After he was released, he lived with his brother in the City of Orange and got a job with a beer distributing company in the City of Tustin.
The jury convicted Leon of counts 1 and 2, and found true all the allegations. After denying Leon’s motion for a new trial, the trial court sentenced Leon to a total state prison term of 38 years to life as follows: 25 years to life on count 1, a consecutive three-year term on the great bodily injury enhancement, and a consecutive 10-year term on the street terrorism enhancement.
DISCUSSION
I. Street Terrorism Substantive Offense and Enhancement
Leon argues insufficient evidence supports his conviction for street terrorism and the jury’s true finding on the street terrorism enhancement. We agree.
“Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jury’s verdict. [Citation.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382, overruled on another ground by People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) The same standard of review applies to section 186.22 gang enhancements. (People v. Augborne (2002) 104 Cal.App.4th 362, 371.)
Section 186.22, subdivision (a), states, “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished . . . in the state prison for 16 months, or two or three years.” (Italics added.) Under section 186.22, subdivision (a), “liability attaches to a gang member who ‘willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.’ [Citation.] In common usage, ‘promote’ means to contribute to the progress or growth of; ‘further’ means to help the progress of; and ‘assist’ means to give aid or support. [Citation.]” (People v. Ngoun (2001) 88 Cal.App.4th 432, 436.)
Section 186.22, subdivision (b)(1), increases the punishment for gang-related crimes for “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (Italics added.) The additional term for a violent felony as defined in section 667.5, subdivision (c), is 10 years. (§ 186.22, subd. (b)(1)(C).) Because subdivision (b), shares the same “promote, further or assist” language as subdivision (a), we interpret it similarly.
The Attorney General cites to numerous cases to support its proposition expert witness testimony is appropriate in gang-related cases. We agree with the Attorney General in this regard.
“It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation. [Citation.] California law permits a person with ‘“special knowledge, skill, experience, training, or education” in a particular field to qualify as an expert witness [citation] and give testimony in the form of an opinion [citation].’ [Citation.] However, Evidence Code section 801 limits this testimony to that related to a subject ‘“sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” [Citation.] The subject matter of the culture and habits of criminal street gangs . . . meets this criterion. [Citations.]’ [Citation.] Generally, experts may state their opinion based upon facts given in a hypothetical question asking them to assume their truth; however, the hypothetical must root itself in facts shown by the evidence. [Citation.] If experts base an opinion on material not admitted into evidence, the material must be reasonably relied upon by experts in that particular field in forming their opinions and be reliable. [Citation.] ‘“Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.”’ [Citation.]” (In re Frank S. (2006) 141 Cal.App.4th 1192, 1196-1197 (Frank S.).)
The appropriateness of Castillo’s testimony is not Leon’s argument. He contends the evidence presented at trial, including the expert’s testimony, was insufficient to support his conviction for street terrorism and a true finding on the street terrorism enhancement. Specifically, he argues there was insufficient evidence: (1) “[he] was actively participating in a criminal [street] gang and that the assault . . . served to ‘willfully promote[], further[], or assist[]’ the gang[;]” and (2) “the assault . . . was committed ‘for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist’ the gang activity.” Because we are addressing a claim of insufficient evidence, below, we set forth significant portions of Castillo’s testimony.
Castillo testified concerning gang customs and habits, including monikers, tattoos, “mad dogging,” and “back up.” He explained the importance of violence, and how the more violence a gang member commits, the more that person is respected in the gang, and the more the gang is respected in the community.
He testified Sixth Street is a territorial criminal street gang. Sixth Street is centered in a residential neighborhood in the City of Santa Ana, and its borders are Santa Ana Boulevard in the north, First Street in the south, Flower Street in the east, and Baker or Bristol Street in the west. Sixth Street gang members live within and outside its territory. Sixth Street gang members commit crimes within and outside its territory, and they boast to fellow gang members about their crimes.
He explained gang members typically back each other up and commit serious crimes to intimidate witnesses and gain more respect in the neighborhood. Sixth Street gang members have been known to commit serious felonies such as robbery, shooting at an occupied vehicle, and vehicle theft.
Castillo explained Leon was recognized as a Sixth Street gang member in May 1993. An officer issued him a gang notice advising him he was associating with a criminal street gang. Leon admitted to being a Sixth Street gang member for two years. Leon told officers his moniker was “Green Eyes.” In July 1993, an officer issued him a gang notice, and again, he claimed to be a Sixth Street gang member for two years. Leon was with another Sixth Street gang member. In August 1994, an officer issued Leon a gang notice, and Leon claimed to be a Sixth Street gang member for one year. In May 1996, Castillo served Leon with a gang notice, and Leon claimed to be a Sixth Street gang member for two years and his moniker was “Cat Eyes.” Leon was with four Sixth Street gang members. Leon had three tattoos, one was his last name written on his back, another the number “6” on his left hand, and the last an “O” and a “C” (Orange County) on his elbow. In August 1996, an officer issued Leon a gang notice, and Leon claimed to have been “jumped into” the Sixth Street gang and his moniker was “Green Eyes.” In April 1999, gang unit officers interviewed Leon, who said he had been a Sixth Street gang member since he was 13 years old (he was nearly 21 years old at that time). In January 2005, an officer issued Leon a gang notice, he admitted he was “jumped in a long time ago[,]” and he admitted to being a Sixth Street gang member over the last five years. Leon stated he had been a Sixth Street gang member for 11 years, and his moniker was “Green Eyes.”
Based on Castillo’s training and experience, Leon’s police contacts, and Leon’s tattoos, Castillo opined he was an active participant in Sixth Street on the date of the incident. Based on a hypothetical mirroring the facts of this case, Castillo opined the assault was committed for the benefit of a criminal street gang. Castillo also opined the assault promoted and furthered Sixth Street.
On cross-examination, Castillo testified both the predicate offenses were committed within Sixth Street territory, the most recent being March 2003. He admitted that from December 2004 to April 2005, including the time of the offense, Leon did not live in Sixth Street territory. He said moving out of the gang territory manifested an intent to leave the gang. Castillo conceded he had no information that anyone involved in the assault, other than Leon, was a gang member. Specifically, he had no information Richard or Johnny were gang members. Additionally, he had no information Leon’s friend, Nicholas, was a gang member, or that they were “backing up” each other. He stated there were no gang threats that evening, and the aggravated assault was not one of the typical crimes Sixth Street gang members commit. He also admitted the incident occurred “a distance from the [Sixth Street] territory.” Castillo said he had no information another gang was involved in the assault. Castillo admitted he had no personal knowledge whether Leon was an active Sixth Street gang member the night of the incident or that other Sixth Street gang members learned of the assault.
On redirect examination, Castillo opined there were instances where no gang names were shouted or no one was “hit up,” and it was still a gang crime. He added, “you have to look at each case on its own merits to make a determination.”
As to the substantive offense of street terrorism, we quickly dispose of Leon’s claim there was insufficient evidence he was an active participant in Sixth Street on the date of the incident. Castillo testified that in January 2005, Leon admitted to being a Sixth Street gang member at that time, and over the previous five years. Leon was in prison from December 2000 to December 2004, which explains the lack of police contacts during that time. Castillo’s testimony on this point was sufficient evidence for the jury to find Leon was an active participant in Sixth Street on the date of the assault. We must now determine whether Leon “‘willfully promot[ed], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang.’” (People v. Castenada (2000) 23 Cal.4th 743, 749.) Reviewing all the evidence in the light most favorable to the judgment, we conclude he did not.
Although the “testimony of a single witness is sufficient to support a conviction” (People v. Young (2005) 34 Cal.4th 1149, 1181), the hypothetical question must be rooted in facts shown by the evidence, and an expert witness’s testimony is no better than the facts on which it is based (Frank S., supra, 141 Cal.App.4th at pp. 1196-1197). Here, we conclude Castillo’s testimony concerning this point dissolves as a house built on sand would when hit by water.
There was insufficient evidence Leon’s commission of the aggravated assault was gang related. There was no evidence anyone other than Leon was a Sixth Street gang member, or a member of any other gang for the matter. There was no evidence of any gang challenges or threats. There was no evidence Leon claimed he was a Sixth Street gang member. The assault was not committed in Sixth Street territory. And, there was no evidence news of the assault spread to other Sixth Street gang members or the community thereby increasing Leon’s or the Sixth Street gang’s stature. Castillo’s opinion based on generalized notions of gang customs and habits was insufficient without some evidence the assault was gang related to sustain a conviction for street terrorism. Simply put, this was an aggravated assault committed by a person who happened to be a gang member. It was not necessarily a gang member committing an aggravated assault to promote his gang.
We conclude similarly with respect to the street terrorism enhancement. Again, there was no evidence Leon committed the aggravated assault “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1), italics added.) As we explain above more fully, there was no evidence the aggravated assault was gang related, i.e., no other gang members involved, no gang threats, no claimed gang membership, not in gang territory. Although there was evidence Leon was an active participant in Sixth Street, gang membership alone does not prove the requisite intent. (Frank S., supra, 141 Cal.App.4th at pp. 1196-1197.)
The Cabral group went to a bar, and Anthony “bumped into” a member of the Leon group. As is unfortunately more and more frequent these days, no one said excuse me or sorry, and simply, and peacefully, moved on. Instead, these young people felt disrespected and carried it with them for over two hours until they had an opportunity to right what they considered to be a most grievous wrong. Based on all the evidence presented at trial, we conclude this was not a gang crime, but a crime based on immaturity and foolishness.
Our conclusion is buttressed by Frank S., supra, 141 Cal.App.4th 1192. In Frank S., the juvenile court found true the minor carried a concealed dirk or dagger for the benefit of a criminal street gang. (Id. at p. 1194; see § 186.22, subd. (b).) On appeal, minor argued insufficient evidence supported the true finding on the street terrorism enhancement because there was no evidence he possessed “the specific intent to promote, further, or assist criminal gang behavior.” (Frank S., supra, 141 Cal.App.4th at pp. 1194-1195.) The court agreed, and began by stating, “We publish this case to emphasize that crimes may not be found to be gang-related based solely upon a perpetrator’s criminal history and gang affiliations.” (Id. at p. 1195.) The court explained the prosecution presented only the gang expert’s opinion concerning gangs in general. (Id. at p. 1199.) The court stated the prosecution presented no evidence minor was in gang territory, was with gang members, or expected to use the knife in a gang-related offense. (Ibid.) Citing to People v. Martinez (2004) 116 Cal.App.4th 753, the court concluded: “‘The crime itself must have some connection with the activities of a gang, which we conclude means a “criminal street gang” . . . .’ [Citation.] Based on section 186.22, a crime fails to be ‘gang related’ unless appellant committed it ‘“‘for the benefit of, at the direction of, or in association with’ a street gang.”’ [Citation.] While evidence established . . . minor has an affiliation with the [criminal street gang], membership alone does not prove a specific intent to use the knife to promote, further, or assist in criminal conduct by gang members. [Citation.]” (Frank S., supra, 141 Cal.App.4th at p. 1199.)
Also at issue in Frank S., was the gang expert’s testimony concerning minor’s intent. (Frank S., supra, 141 Cal.App.4th at pp. 1197, 1199.) We are not confronted with that issue here and limit our discussion accordingly.
The Attorney General tries to distinguish Frank S. by claiming Leon “backed up” his friend in the bar, he “mad dogged” Anthony, challenged Anthony to step outside, and used a lock to assault Johnny. Unfortunately, in today’s society, and as Castillo conceded, these things are not unique to gangs.
Therefore, we conclude insufficient evidence supports Leon’s street terrorism conviction and the jury’s true finding on the street terrorism enhancement. Because we reverse the jury’s true finding on the street terrorism enhancement, we need not address Leon’s claim the 10-year sentence on the street terrorism enhancement was an unauthorized sentence because the aggravated assault was not a violent felony.
II. Sentence-Three Strikes/Ineffective Assistance of Counsel
Relying on People v. Flores (2005) 129 Cal.App.4th 174 (Flores), Leon contends his two prior strike convictions are only one strike because street terrorism is a necessarily included offense of carrying a firearm while being an active participant in a criminal street gang. Alternatively, Leon claims he received ineffective assistance of counsel from his trial and appellate counsel in the 2000 matter, and his trial counsel in this matter, because they did not raise the necessarily included offense argument. Relying on our prior unpublished opinion in the 2000 matter, People v. Leon (Dec. 3, 2001, G028411) [nonpub. opn.], the Attorney General contends Leon “was properly convicted of two separate offenses and that one of them is not a lesser included offense of the other.” We disagree.
The jury found Leon’s prior 2000 convictions to be true. At the sentencing hearing in this matter, defense counsel moved to strike one of the prior convictions, although he did not argue street terrorism is a necessarily included offense of carrying a firearm while being an active participant in a criminal street gang. The trial court exercised its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, and denied Leon’s motion. Because we can analyze Leon’s claim on the record before us, we will address his claim within the context of his direct appeal, and need not address his contention in his petition for writ of habeas corpus he received ineffective assistance of counsel.
The Attorney General does not argue review on this ground is waived.
In Flores, supra, 129 Cal.App.4th at page 184, the court held street terrorism (186.22, subd. (a)) is a necessarily included offense of carrying a firearm while being an active participant in a criminal street gang (§ 12031, subd. (a)(2)(C)). Therefore, a defendant could not be convicted of both crimes arising from the same conduct.
Here, the 2000 amended information charged Leon with the following: “On or about April 12, 1999, . . . Leon, in violation of [s]ection 186.22[, subd.](a) . . . (street terrorism), a felony, did willfully, unlawfully[,] and actively participate in a criminal street gang, to wit: [Sixth] Street and Highland Street, with knowledge that its members engage in and have engaged in a pattern of criminal gang activity and did willfully promote, further[,] and assist in [f]elony criminal conduct by gang members.”
In our prior opinion, we explained the facts of the 2000 convictions as follows: On April 12, 1999, Jose Navarette, his brother Felipe, and Fermin Velasquez, drove to Navarette’s house on Baker Street in Santa Ana. Navarette went inside while Felipe and Velasquez stayed in the car. A car pulled up driven by Leon. Jorge Madrigal was his passenger. Leon said he belonged to the Sixth Street gang and asked the men to what gang they belonged. They said, “None.” Navarette came out of his house. Leon and Madrigal asked what gang he was from, and Navarette replied, “Nowhere.” Leon got mad. Navarette told him, “[T]ake it easy, I don’t want any trouble.” Leon and Madrigal got out of their car. Madrigal had a gun in his hand which he was “rack[ing].” Felipe got out of Navarette’s car and walked towards Leon’s car. Navarette warned his brother that Madrigal had a gun. Felipe continued towards Madrigal with his hands up in the air asking, “What the hell is going on?” Madrigal had the gun pointed at Felipe’s head and said, “You want to die” or “Do you want me to shoot?” Felipe replied, “If you are going to shoot, . . . shoot.” Leon told Madrigal several times to shoot Felipe. Madrigal pulled the trigger five or six times, but the gun would not fire. Felipe jumped on Madrigal, and they started to fight. Leon stepped into the fight to defend Madrigal. Navarette tried to pull Leon off Felipe. During the fracas, Felipe wrested the gun away from Madrigal. Madrigal tried to run away; Felipe shot him in the back, killing him.
One-half hour earlier, two men were walking on Baker Street about one block away. Leon and Madrigal drove up, and Leon asked what gang they belonged to. They said they were from “Shalimar Street” in Costa Mesa. Leon told them they were in Sixth Street territory and drove away. A Santa Ana Police Department investigator testified Madrigal was a known member of the Highland Street gang.
The Attorney General asserts this conduct constitutes sufficient evidence to support a separate conviction for street terrorism. Again, we disagree. It fails to explain what felony was committed during the exchange with the Shalimar Street gang.
In addressing Leon’s sufficiency of the evidence claim as to his street terrorism conviction in our prior opinion, we explained: “The men acted together in the assault on the Navarette brothers and Velasquez. One-half hour earlier, they had approached two other men a block away. Madrigal asked what gang they were from, and then Leon warned them they were in Sixth Street territory.”
The information charged Leon with committing street terrorism and carrying a firearm while he was an active participant in a criminal street gang.
The record reflects the district attorney indiscriminately relied on the entire course of conduct to support the two convictions. We decline the Attorney General’s invitation to now parse the facts to support two independent convictions. We cannot say Leon was convicted of two separate offenses. Based on Flores and the record before us, we conclude Leon’s 2000 conviction for street terrorism is a necessarily included offense of carrying a firearm while he was an active participant in a criminal street gang. Therefore, they count as one conviction, not two. We remand the matter for resentencing consistent with the principles expressed in this opinion.
Leon did raise a section 654 argument, the prohibition on multiple punishments arising from the same conduct, in the prior opinion, but not as to these two counts.
DISPOSITION
The conviction for aggravated assault is affirmed, the conviction for street terrorism and the true finding on the street terrorism enhancement are reversed, and we remand for resentencing. We deny the petition.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.