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People v. Lopez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 13, 2012
E051588 (Cal. Ct. App. Jan. 13, 2012)

Opinion

E051588 Super.Ct.No. RIF150539

01-13-2012

THE PEOPLE, Plaintiff and Respondent, v. NOE LOPEZ, Defendant and Appellant.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Noe Lopez appeals after he was convicted of three counts of attempted murder and one count of discharging a firearm into an occupied vehicle. The jury also found true an allegation that defendant had caused great bodily injury by personally and intentionally discharging a firearm. He contends that his sentence—seven years to life on the principal attempted murder count, plus a consecutive 25 years to life for the firearm enhancement—constitutes cruel and unusual punishment under the state and federal Constitutions, because he was a minor at the time he committed the charged offenses. We reject the contention and affirm the sentence.

FACTS AND PROCEDURAL HISTORY

On October 29, 2006, Socorro Flores was driving her car along a rural road in San Bernardino County. It was about 8:25 p.m. Her son and daughter were in the car with her. A truck came up behind Flores's vehicle, and then drew alongside. This happened more than once, and someone in the pursuing truck fired gunshots into Flores's car. One of the windows shattered, and Flores's daughter was hit in the arm by a bullet. Flores memorized the truck's license plate number, and then took her daughter to a local fire station, where the daughter was treated by paramedics. Flores reported the truck's license plate number to the officers who arrived to investigate.

About two hours after the shooting, sheriff's deputies went to the registered address for the reported truck, and found it parked on the property. As a team of deputies came onto the property, two men ran out of a trailer to the truck. One of the men held a black, shiny object in his hand. The deputies ordered the men to the ground; the deputies found a handgun on the ground near the men. The deputies arrested the two men; one of the men arrested was defendant.

Investigators recorded two interviews with defendant. During the first interview, defendant initially denied being involved in any shooting. Later, he said he was driving alone in the truck when a bald man in another car threw up gang signs and shot at defendant's tires. Defendant, who was 16 years old, just "reacted," and returned fire with one shot.

During a second interview, defendant changed his story somewhat, saying that he had a passenger, "Julio" in the truck with him. Defendant claimed that Flores's son had stuck his head out of the rear driver's side car window and made gang signs and otherwise challenged defendant and Julio. Defendant also said that Flores's son had first fired a shot at defendant's truck; defendant then handed his pistol to Julio, who fired twice at Flores's vehicle.

The prosecutor filed an information in 2009 (almost three years after the events) charging defendant with three counts of deliberate and premeditated attempted murder (one count for each person in Flores's vehicle), and one count of malicious discharge of a firearm at an occupied vehicle. The information also alleged that defendant had caused great bodily injury by personally and intentionally discharging a firearm (as to counts 1 & 4), and personally and intentionally discharged a firearm (as to counts 2 & 3).

Jury trial began in April 2010, and the jury found defendant guilty as charged on all counts, and found the firearm allegations true.

The court sentenced defendant to a life term with possibility of parole on count 1 (the attempted murder of Flores's daughter), plus a consecutive term of 25 years to life on the firearm/great bodily injury (GBI) enhancement attached to that count. As to counts 2 and 3, the court sentenced defendant to two concurrent life terms (with the possibility of parole), and stayed 20-year terms for the firearm enhancements on those counts. On count 4, the court sentenced defendant to the middle term of five years, plus a consecutive term of 25 years to life for the firearm/GBI enhancement, and stayed those terms pursuant to Penal Code section 654.

Defendant filed a notice of appeal.

ANALYSIS


Defendant's Sentence Did Not Violate Federal and State Constitutional Guaranties


Against Cruel and Unusual Punishment

A. Contentions

The crux of defendant's appeal is that, although he committed the charged crimes when he was a minor (16 years old), his sentence effectively constitutes a lifetime prison sentence. In Graham v. Florida (2010) 560 U.S. _ [130 S.Ct. 2011, 176 L.Ed.2d 825] (Graham), the United States Supreme Court held that the Eighth Amendment prohibition against cruel and unusual punishments did not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. Defendant urges that he fits within the rubric of Graham, because his eligibility for parole will be delayed so long and, even if he is eligible, such parole is so rarely granted that he will for practical purposes be imprisoned for the rest of his life for offenses he committed as a minor.

Even if his sentence does not violate the categorical rule announced in Graham, defendant argues that his sentence was nevertheless unconstitutionally cruel and unusual, because it is grossly disproportionate to his offense.

The People argue that defendant failed to object in the lower court to his sentence on the ground of cruel and unusual punishment. Thus, the People contend that defendant has forfeited the claim. Defendant responds both that a defendant is permitted to raise the issue of deprivation of constitutional rights (including cruel and unusual punishment violations) for the first time on appeal (citing, e.g., People v. Vera (1997) 15 Cal.4th 269, 276-277; People v. Keogh (1975) 46 Cal.App.3d 919, 931) and that, if his claim is forfeited because his trial counsel failed to raise the objection, then his attorney's representation was constitutionally ineffective.

A claim of ineffective assistance of counsel (IAC) is reviewed under the standard of Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052; 80 L.Ed.2d 674]: A defendant claiming IAC must show both that counsel's performance was deficient, and that defendant was prejudiced thereby. (Id. at p. 687.) The People urge defendant cannot prevail on his IAC claim because he cannot show prejudice, and defendant cannot show prejudice because his sentence did not, in fact, constitute cruel and unusual punishment. In other words, the People attack the IAC claim by addressing the merits of the constitutional claim in its own terms. Thus, the IAC claim stands or falls with the substantive claim. If defendant's sentence is unconstitutional, he was unquestionably prejudiced thereby, and counsel would lack a justifiable tactical or other reason for failing to raise it below. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) On the other hand, if defendant's sentence does not violate constitutional principles against cruel and unusual punishment, then he was not prejudiced by the failure to raise the claim below, and his IAC claim would fail.

In the interest of judicial economy, and because of the importance of the issue, we also exercise our discretion to address the issue on the merits. We note that the California Supreme Court has granted review in several cases raising the same issue. (See People v. Caballero (2011) 191 Cal.App.4th 1248, review granted Apr. 13, 2011, S190647; People v. Ramirez (2011) 193 Cal.App.4th 613, review granted June 22, 2011, S192558; People v. Nunez (2011) 195 Cal. App. 4th 414, review granted July 20, 2011, S194643; People v. J.I.A. (2011) 196 Cal.App.4th 393, review granted Sept. 14, 2011, S194841.) B. Graham, supra, 130 S.Ct. 2011 Established a Categorical Rule That Juveniles Who Commit Nonhomicide Crimes May Not Be Sentenced to Life in Prison Without the Possibility of Parole

In Graham, supra, 130 S.Ct. 2011, the defendant was 16 years old when he committed armed burglary and another crime. Under a plea agreement, the Florida trial court sentenced the defendant to probation and withheld adjudication of guilt. Later, the defendant violated his probation by committing additional crimes. The trial court adjudicated him guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the burglary. Because Florida had abolished its parole system, the life sentence left the defendant no possibility of release except executive clemency. He challenged his sentence under the Eighth Amendment's cruel and unusual punishments clause. The United States Supreme Court held that the Eighth Amendment "prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide." (Graham, at p. 2034.)

The United States Supreme Court described two broad types of cases to which the cruel and unusual punishments clause applies: First, the Eighth Amendment prohibits inherently barbaric punishments. Second, representing the more common type of Eighth Amendment problem, the Eighth Amendment prohibits punishments that are disproportionate to the crime. "The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution's ban on cruel and unusual punishments is the 'precept of justice that punishment for crime should be graduated and proportioned to [the] offense.' [Citation.]" (Graham, supra, 130 S.Ct. at p. 2021.)

Proportionality cases also divide themselves into two general types: "The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the Court implements the proportionality standard by certain categorical restrictions on the death penalty." (Graham, supra, 130 S.Ct. at p. 2021.) Graham, however, involved an unusual issue: "a categorical challenge to a term-of-years sentence." (Id. at p. 2022.)

The court recognized that juveniles have lessened culpability and are less deserving of the most severe punishments; it saw no reason to reconsider these notions as to juveniles. (Graham, supra, 130 S.Ct. at p. 2026.) In addition, the court's precedents also recognized that "defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers. [Citations.]" (Id. at p. 2027.) The court then stated, "It follows that, when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis." (Ibid.)Further, "Life without parole is an especially harsh punishment for a juvenile. Under this sentence a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only. [Citations.]" (Id. p. 2028.)

The court thus created a categorical rule: "In sum, penological theory is not adequate to justify life without parole for juvenile nonhomicide offenders. This determination; the limited culpability of juvenile nonhomicide offenders; and the severity of life without parole sentences all lead to the conclusion that the sentencing practice under consideration is cruel and unusual. This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole." (Graham, supra, 130 S.Ct. at p. 2030.)

The court did not foreclose the possibility that a person sentenced for a crime committed as a juvenile could actually serve a life sentence in prison: "A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society." (Graham, supra, 130 S.Ct. at p. 2030.) The court justified its categorical rule on several bases, including that it avoids the risk of an erroneous assessment of a juvenile's culpability, and that it "gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform." (Id. at p. 2032.) The court remarked, "The juvenile should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential. . . . Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope. Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation. A young person who knows that he or she has no chance to leave prison before life's end has little incentive to become a responsible individual. In some prisons, moreover, the system itself becomes complicit in the lack of development. . . . [I]t is the policy in some prisons to withhold counseling, education, and rehabilitation programs for those who are ineligible for parole consideration. A categorical rule against life without parole for juvenile nonhomicide offenders avoids the perverse consequence in which the lack of maturity that led to an offender's crime is reinforced by the prison term." (Id. pp. 2032-2033.)

Defendant here argues that his sentence falls within the rubric of Graham, and results in a de facto life sentence without parole for a nonhomicide crime he committed as a juvenile. We next examine this claim in light of the United States Supreme Court's pronouncements in Graham. C. The Nature of Defendant's Sentence and the Minimum Parole Eligibility Period Show That He Is Not Precluded a Meaningful Opportunity to Demonstrate Maturity and Rehabilitation

Count 1 was the attempted premeditated murder of Flores's daughter. Defendant was sentenced on that count to a life term with possibility of parole. Because Flores's daughter was struck and injured by one of the bullets defendant fired, he was also punished under Penal Code section 12022.53, subdivision (d), with an enhancement for personal discharge of a firearm causing GBI. The sentence on the enhancement was a separate consecutive term of 25 years to life. Defendant's sentences do not preclude the possibility of parole; he could be eligible for release on parole in the future, after serving a minimum number of required years in prison.

The Attorney General posits parole eligibility in 32 years. Appellate defense counsel estimates parole eligibility at "two to three decades."

Penal Code section 3046 specifies that:

"(a) No prisoner imprisoned under a life sentence may be paroled until he or she has served the greater of the following:

"(1) A term of at least seven calendar years.

"(2) A term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole.

"(b) If two or more life sentences are ordered to run consecutively to each other pursuant to Section 669, no prisoner so imprisoned may be paroled until he or she has served the term specified in subdivision (a) on each of the life sentences that are ordered to run consecutively."

Defendant here has two or more consecutive life sentences (a life term on count 1, plus 25 years to life on the firearm/GBI enhancement). (See People v. Acosta (2002) 29 Cal.4th 105, 115, holding that enhancement life sentence is a consecutive life sentence for purposes of Pen. Code, § 3046.)

The principal term was count 1, the willful, deliberate and premeditated attempted murder of Flores's daughter. (Pen. Code, §§ 187, 664.) The sentence for such an attempt is prescribed in Penal Code section 664, subdivision (a), which provides generally that the sentence for an attempted felony (i.e., a crime "punishable by imprisonment in the state prison") is one-half the sentence prescribed for that felony; however, "if the crime attempted is willful, deliberate, and premeditated murder . . . the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." This is a "straight life" sentence, for which Penal Code section 3046, subdivision (a)(1), prescribes the minimum parole eligibility period as at least seven calendar years. Thus, the parties refer to the term on the principal charge as "seven years to life."

The firearm/GBI enhancement attached to count 1 was imposed pursuant to Penal Code section 12022.53. Subdivision (a) of Penal Code section 12022.53 lists in the crimes to which a firearm sentence enhancement will apply; these crimes include murder (Pen. Code, § 12022.53, subd. (a)(1)) and any attempt to commit the listed felonies (e.g., attempted murder). (See Pen. Code, § 12022.53, subd. (a)(18) ["This section applies to the following felonies: [¶] . . . [¶] (18) Any attempt to commit a crime listed in this subdivision other than an assault"].)

Defendant was initially charged under Penal Code section 12022.53, subdivision (b), which provides for an enhancement for personal use of a firearm in the commission of one of the listed felonies. The penalty for a violation of Penal Code section 12022.53, subdivision (b), is an additional consecutive 10-year term. On the second day of trial, however, the information was amended by interlineation to charge a violation of Penal Code section 12022.53, subdivision (d). Penal Code section 12022.53, subdivision (d), applies to the personal and intentional discharge of a firearm that causes great bodily injury to a nonaccomplice. Penal Code section 12022.53, subdivision (d), specifies that the punishment for a violation shall be "an additional and consecutive term of imprisonment in the state prison for 25 years to life." The specification of "25 years to life" is an "other provision of law" within the meaning of Penal Code section 3046, subdivision (a)(2), which provides that the minimum number of years served before eligibility for parole shall be, "A term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement under a life sentence before eligibility for parole." Thus, defendant must serve 25 years as a minimum on the enhancement before he would be eligible for parole.

Because his life sentences are run consecutively, defendant must serve 32 years minimum before he would be eligible to be released on parole. (Pen. Code, § 3046, subd. (b) ["If two or more life sentences are ordered to run consecutively to each other pursuant to Section 669, no prisoner so imprisoned may be paroled until he or she has served the term specified in subdivision (a) on each of the life sentences that are ordered to run consecutively"].)

Considering the minimum periods defendant must serve before he is eligible for parole, his aggregate indeterminate sentence is 32 years to life. Defendant was age 16 when he committed the crimes, and he was 20 years old at the time of sentencing. Defendant will be eligible for parole, at the earliest, when he is 52 years old.

Defendant was sentenced on the two remaining attempted willful deliberate and premeditated murder counts to life in prison (seven years to life), plus 20 years for personally discharging a firearm for each such count. These sentences were run concurrent to the sentence on the principal term. As to count 4, discharging a firearm into an occupied vehicle, the court imposed a sentence consisting of the middle term of five years plus 25 years to life for the firearm enhancement. The court stayed the sentences on count 4 pursuant to Penal Code section 654. Because these sentences are either concurrent with the principal count, or stayed, the sentences on these counts do not increase defendant's minimum parole eligibility period.

Defendant's situation is thus different from that of the defendant in Graham, where the juvenile offender was denied at the outset any "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (Graham, supra, 130 S.Ct. at p. 2030.) The minimum parole eligibility period does not, as in some cases, exceed defendant's natural life expectancy. (See, e.g., People v. Mendez (2010) 188 Cal.App.4th 47, 62-63 [sentence of 84 years to life exceeds life expectancy for an 18-year-old male of 76 years, resulting in a sentence " 'materially indistinguishable' " from life without parole].) Although release on parole is not guaranteed, defendant will have, during the minimum parole eligibility period, a meaningful opportunity to demonstrate maturity and rehabilitation. He will have a meaningful opportunity to show that he is sufficiently rehabilitated to be able to live, potentially, a substantial portion of his life outside of prison.

The People argue that defendant's sentence also does not contravene the Graham categorical rule for another reason: defendant's offense of attempted murder should not be considered a nonhomicide offense. The People point to the Graham court's statement that, "a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability." (Graham, supra, 130 S.Ct. at p. 2027.) Because defendant here did intend to kill, he should not benefit from the categorical rule. We cannot agree. Although defendant may not have had "twice diminished moral culpability" with respect to his mental state, he was nevertheless a juvenile at the time of the offenses and, thus, had substantially reduced culpability compared to an adult offender. No one was killed. In the absence of any person's death, we cannot countenance transforming a nondeath event into a "homicide." Defendant's offense, attempted murder, was a nonhomicide offense.
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Defendant argues that statistically speaking, few people who are eligible for parole are granted parole, and even when parole is granted, significant numbers of those determinations are reversed. However, unlikelihood is not the same as preclusion ab initio. Defendant will have the same meaningful opportunity for parole as any other eligible prisoner.

Unlike the sentences in a number of the review-granted cases, which utterly precluded the defendant from reaching the point of eligibility before exhausting his anticipated life expectancy, defendant is not so precluded. His minimum parole eligibility period does not exceed, or nearly exceed, his life expectancy. He could potentially live a substantial portion of his life outside of prison.

Our conclusion, that defendant's sentence does not violate the categorical rule of Graham, however, does not entirely dispose of the case. Defendant also argues that, aside from Graham, his sentence is nevertheless unconstitutional under both the federal and state Constitutions. We examine this contention next. D. Defendant's Sentence Did Not Violate the Proportionality Tests for Cruel and Unusual Punishment Under the Federal or State Constitutions

Both the federal and the California Constitutions contain a proportionality principle in the guaranties against the imposition of cruel and unusual punishment.

The Eighth Amendment prohibits the imposition of punishments that are grossly disproportionate to the severity of the crimes. (Ewing v. California (2003) 538 U.S. 11, 20-21 [123 S.Ct. 1179, 155 L.Ed.2d 108].) "[T]hree factors may be relevant to a determination of whether a sentence is so disproportionate that it violates the Eighth Amendment: '(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.' [Citation.]" (Id. at p. 22.)

In California, a punishment is excessive if it "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) The formulation under Lynch, supra, requires consideration of a number of factors, including: (1) "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society" (id. at p. 425); (2) a comparison of the challenged penalty with the punishments prescribed for different, more serious, offenses in the same jurisdiction (id. at p. 426); and (3) "a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions" (id. at p. 427). The Lynch analysis was reaffirmed in People v. Dillon (1983) 34 Cal.3d 441.

Both standards "prohibit punishment that is 'grossly disproportionate' to the crime or the individual culpability of the defendant. [Citations.] . . . [Citations.] Any one of these three factors can be sufficient to demonstrate that a particular punishment is cruel and unusual. [Citation.]" (People v. Mendez, supra, 188 Cal.App.4th 47, 64-65.)

As to the nature of the offense, defendant deliberately and premeditatedly attempted to kill three people. Defendant was fortunate that no one was killed as a result of his actions. The offense was extremely serious: as serious as it could be for a nonhomicide offense. As to the circumstances of the offender, defendant was a minor and, thus, not as culpable for the same conduct as an adult would be. Defendant's judgment was not as sophisticated as an adult's, and he claimed that he simply reacted to the actions of Flores's son, who challenged him with gang signals. (Defendant also told police that he—or his companion "Julio"—responded in kind to shots fired from the Flores vehicle, but no evidence corroborated the claim that Flores's son had or fired any weapon.) Defendant may have had a minimal adjudicated criminal history, but by his own admission, he was engaged in gang rivalry, and had armed himself purposely in that endeavor.

Defendant urges with respect to the proportionality of the sentence to other, more serious, offenses in the same jurisdiction, that the sentence on his enhancement is at least equal to that for premeditated murder, even though he killed no one. As the People point out, however, defendant fully intended to kill Flores's son when he fired his gun; his sentence is not grossly disproportionate to his culpability simply because of the fortuity that he did not succeed in killing his intended victim.

Defendant does not address any comparison of penalties for similar offenses in other states and, thus, fails to demonstrate disproportionality on that basis.

Defendant's charged offenses were very serious and deserving of very serious punishment. The penalty inflicted, while severe, is not so harsh as to amount to cruel and unusual punishment.

DISPOSITION

Defendant's sentence did not violate federal or state constitutional guaranties against the infliction of cruel and unusual punishment. The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.
We concur:

RICHLI

J.

MILLER

J.


Summaries of

People v. Lopez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 13, 2012
E051588 (Cal. Ct. App. Jan. 13, 2012)
Case details for

People v. Lopez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. NOE LOPEZ, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 13, 2012

Citations

E051588 (Cal. Ct. App. Jan. 13, 2012)