Opinion
A146304
05-02-2017
THE PEOPLE, Plaintiff and Respondent, v. JENNIE MCALLISTER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-150675-7)
A jury convicted defendant Jennie McAllister of one felony count of arson of the property of another and one misdemeanor count of unlawfully causing a fire of real property and vegetation. On appeal, she claims that the trial court erroneously: (1) instructed the jury after the jury indicated it was deadlocked 11-1 on the first count; (2) instructed the jury on the intent element of arson; and (3) failed to stay the sentence for the misdemeanor conviction under Penal Code section 654. We affirm.
All further statutory references are to the Penal Code.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On the afternoon of April 9, 2015, an Antioch police sergeant was on patrol when a man flagged him down and pointed to a "small brush fire" on City of Antioch property that was between two residences. The left rear wheel of a Target shopping cart about 30 feet away was also burning. There were "remnants of a burned plastic bag" on the ground, on the cart's handle, and near the cart's wheel.
The sergeant noticed a woman, later identified as McAllister, standing near the shopping cart. He got out of his patrol vehicle and began talking with K.E., the owner of an auto dealership that was a few doors down from the brush fire. The sergeant saw McAllister "become agitated," and she yelled at K.E., " 'I can do whatever I want.' " She then quickly approached the men, but she complied when the sergeant told her to sit on the sidewalk.
The sergeant then noticed that McAllister was holding "a fixed blade pocketknife." She began leaning forward as if to stand up, and the sergeant grabbed her arm, causing the knife and a lighter to fall on the ground. He then took her into custody. Later, while being booked, McAllister laughingly stated, " 'Yeah, I wanted to get arrested. I set that shit on fire. It was my plan. I wanted to get three meals, a bed, get a shower; . . . and that is how you get it done peeps. . . . That was my plan all along.' "
K.E. testified that a couple days before the incident, he saw McAllister jump the fence near his body shop. He asked her to leave, but he learned the following morning that she had spent the night in a customer's car. Then, the night before the incident, he noticed McAllister sitting on the steps of his office and asked her to leave, which she did. The next afternoon, McAllister was again "loitering on the property," but this time she refused to leave and threatened to "cut" him.
K.E. testified that eventually McAllister left, but a few minutes afterward, a man later identified as Joseph C. told K.E. that McAllister "was on the outside of [the dealership] lot stabbing car tires" and "said she was going to burn the place down." Similarly, the sergeant testified that Joseph C. reported observing McAllister trying to slash the tires of a car on the dealership lot and threatening " 'to blow this place up.' " At trial, however, Joseph C. denied making any of the statements attributed to him or even speaking to the sergeant.
K.E. did not see McAllister near the cars when he went to investigate and did not see any damage to the tires of the particular car Joseph C. identified. K.E. soon learned that a fire had started, however, and discovered some brush on fire and McAllister standing near it. The sergeant arrived almost immediately and began talking to her. K.E. testified that he overheard McAllister tell the sergeant that she had not started a fire on purpose and explain that "she was trying to get her . . . recycled bottles out of a plastic bag, and she couldn't get it out, so she lit the bag on fire to open it up, and that is how the brush got on fire."
An expert in the origin and causes of fires opined that the burning and dripping of "light plastic" attached to the shopping cart's handle, which had partially melted, caused the fire on the cart's wheel. He also opined that it was possible "that there were two separate fires" because it was "unlikely" that the cart fire had spread to cause the brush fire, based on the overall conditions at the scene. He admitted, however, that he could not quantify the "percentage of probability" that the fires had two separate origins, and he agreed that it was possible there was only "a single point of origin in [the] incident."
The jury convicted McAllister of one count of arson of the property of another for the shopping-cart fire. It found her not guilty of arson of real property and vegetation and convicted her of the lesser included offense of unlawfully causing a fire of property for the brush fire. The trial court sentenced her to three years in state prison for the felony and a concurrent term of one year for the misdemeanor.
McAllister was convicted under sections 451, subdivision (d) (arson) and 452, subdivision (d) (unlawfully causing fire).
II.
DISCUSSION
A. The Trial Court Properly Instructed the Potentially Deadlocked Jury.
McAllister claims that the jury instruction the trial court gave after the jury revealed it was deadlocked on the first count "operated to place undue pressure on the lone juror voting for acquittal and therefore coerced the verdict," requiring reversal of her felony conviction. We are not persuaded.
1. Additional facts.
After the jury had been deliberating for about a day, it sent the trial court a note that stated, " 'We have come to an impasse on Count 1515, Arson, property, shopping cart. We do not believe we can resolve this. [¶] Count is at 11 G, 1 NG; still discussing Arson, Land (Antioch property).' " McAllister's trial counsel objected to the court's proposal to give a "modified Allen instruction" that would urge the jury to continue trying to reach a verdict. (See Allen v. United States (1896) 164 U.S. 492, 501; People v. Gainer (1977) 19 Cal.3d 835, 840-842 (Gainer).) Counsel stated that the jury had improperly revealed its current vote on the first count and should be instructed to continue deliberating on the second count.
The trial court determined it was appropriate to give a supplemental instruction, noting its belief that the jury was asking an implied question about what to do with the first count. The court also stated that it did not believe it made a difference that the jury had revealed its vote, because it would not be reasonable for the jury to infer that the court was taking a position on the merits simply by giving the instruction. The court also accepted defense counsel's suggestion that it instruct the jury not to reveal its vote again unless asked to do so.
After summoning the jury to the courtroom, the trial court gave an extended instruction, which we quote at length:
"Two things I want to say before I give you another instruction. The first is that the instruction I am going to give you at this time, I am giving you only with respect to Count 1. The count you are referring to as the Arson, property, shopping cart offense that has been charged.
The second point is that please do not advise me of the numerical breakdown of the vote for any future questions unless you are asked specifically to do that. If you would follow that . . . request, please. It has been my experience on more than one occasion that a jury that initially reported it was unable to reach a verdict was ultimately able to arrive at a verdict.
To assist you in your further deliberations, I am going to give you the following instructions: Your goal as jurors is to be able to reach a fair and impartial verdict, if you were able to do so, based solely on the evidence presented and without regard to the consequences of your verdict, regardless of how long it takes to do so.
It is your duty as jurors to carefully consider, weigh, and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence, and to listen to and consider the views of your fellow jurors.
In the course of your further deliberations, you should not hesitate to reexamine your own views or to request your fellow jurors to reexamine theirs. You should not hesitate to change a view you once held if you are convinced it is wrong, or to suggest that other jurors change their views if you are convinced they are wrong. Fair and effective jury deliberations require a frank and forthright exchange of views.
As I previously instructed you, each of you must decide the case yourself, and you should do so only after a full and complete consideration of all the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge, if you can do so without violence to your individual judgments. Both the People and the defendant are entitled to the individual judgment of each juror.
As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate. If I may suggest, since you have not been able to arrive at a verdict, and that is Count 1, using the methods you have chosen, that you consider . . . chang[ing] the methods you have been following, at least temporarily, and try new methods.
For example, you may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse role playing by having those on one side of the issue present and argue the other side['s] position and vice versa. This might enable you to better understand the others' positions.
By suggesting you should consider changes in your methods of deliberations, I want to stress I am not dictating or instructing you as to how to conduct your deliberations. I [merely] suggest that you may find it productive to do whatever is necessary to ensure that each juror has a fair and full opportunity to express his or [her] views and consider [and understand the] views of the other jurors.
I also suggest that you reread instructions 200 and 3550. These instructions pertain to your duties as jurors and make recommendations on how you should deliberate. The integrity of a trial requires that jurors, at all times during deliberations, conduct themselves as required by the instructions. Instructions 200 and 3550 define the duties of a juror.
The decision the jury renders must be based on the facts and the law. You must determine what facts have been proved from the evidence received in the trial and not from any other source. A fact is something proved by the evidence or by stipulation.After a few more hours of deliberating, the jury returned a verdict on both counts.
Second, you must apply the law as I stated to you to the facts as you determine them, and in this way, arrive at your verdict. You must accept and follow the law as I stated to you, regardless of whether you agree with the law. If anything concerning the law said by the attorneys in their arguments, or at any other time during the trial, conflicts with my instructions on the law, you must follow my instruction.
Instruction 3550 defines the jury's duty to deliberate. The decisions you make in this case must be based on the evidence received in the trial and the instructions given by the Court. These are the matters this instruction requires you to discuss for the purpose of reaching a verdict.
Instruction 3550 also instructs how jurors should approach their task. You should keep this information in mind when considering the additional instructions, comments, and suggestions I am now giving you. I hope my comments and suggestions may be of some assistance to you.
I'll ask that you continue deliberations at this time. If you have other questions, concerns, requests[,] or any communications you desire to report to me, please put those in writing on the form we've provided for you, have them signed and dated by your foreperson."
2. Discussion.
A trial court derives its authority to instruct a potentially deadlocked jury from section 1140, which provides, "Except as provided by law, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict and rendered it in open court, unless by consent of both parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper, it satisfactorily appears that there is no reasonable probability that the jury can agree." (§ 1140; People v. Whaley (2007) 152 Cal.App.4th 968, 979 (Whaley).)
In giving supplemental instructions, a trial court " 'must exercise its power . . . without coercion of the jury, so as to avoid displacing the jury's independent judgment "in favor of considerations of compromise and expediency." ' [Citations.] [¶] Directing further deliberations is proper where the . . . court reasonably concludes that 'such direction would be perceived " 'as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered.' " ' " (Whaley, supra, 152 Cal.App.4th at p. 980.) " 'The determination whether there is reasonable probability of agreement rests in the discretion of the trial court,' " and "[t]he question of coercion is necessarily dependent on the facts and circumstances of each case." (People v. Sandoval (1992) 4 Cal.4th 155, 195-196.)
The " 'judicially declared rule of criminal procedure' " announced in Gainer governs the content of the supplemental instructions that a trial court may give to encourage the jury to continue deliberating. (Whaley, supra, 152 Cal.App.4th at p. 980, quoting Gainer, supra, 19 Cal.3d at p. 852.) Under Gainer, "it is error for a trial court to give an instruction which either (1) encourages jurors to consider the numerical division or preponderance of opinion of the jury in forming or reexamining their views on the issues before them; or (2) states or implies that if the jury fails to agree the case will necessarily be retried." (Gainer, at p. 852.)
McAllister primarily relies on "the trial court's knowledge of the jurors' numerical split between conviction and acquittal," which she characterizes as "frequently a decisive factor leading to a conclusion of undue coercion." It is true that "[t]here is always a potential for coercion once the trial judge has learned that a unanimous judgment of conviction is being hampered by a single holdout juror favoring acquittal," but it is also clear that a trial court's knowledge of the vote breakdown is not determinative. (People v. Sheldon (1989) 48 Cal.3d 935, 958-959 [rejecting argument that it is inherently coercive to instruct jury to continue deliberating where deadlocked 11-1 in favor of death sentence]; People v. Neufer (1994) 30 Cal.App.4th 244, 253-254 [no coercion where jury revealed deadlock of 11-1 in favor of guilt and was instructed to continue deliberating].) Even the cases McAllister relies on that involved this knowledge reflect that all the circumstances, particularly the language of a supplemental instruction, must be assessed to determine whether the instruction was coercive. (See People v. Baumgartner (1958) 166 Cal.App.2d 103, 105-108 [recognizing that potential for coercion greater where vote breakdown known and proceeding to assess whether coercion may have occurred in light of instruction's content]; People v. Walker (1949) 93 Cal.App.2d 818, 820-822, 825 ["There was no impropriety in [the trial judge's] asking how the jury stood numerically, but the moment he gained the information concerning which way they stood, it was his duty to be more than careful in his remarks thereafter"]; People v. Blackwell (1927) 81 Cal.App. 417, 420-421 [coercion to reach guilty verdict existed where trial court knew vote breakdown and said to jurors, " 'I think the jury ought to agree on a verdict' "].) We therefore turn to consider the language of the instruction and the other circumstances present here.
The supplemental instruction the trial court gave is substantively identical to that approved in People v. Moore (2002) 96 Cal.App.4th 1105, which held that the instruction did not improperly coerce the jury to reach a verdict and indeed praised the trial court "for fashioning such an excellent instruction." (Id. at pp. 1118-1120, 1122.) Neither party acknowledges that the instruction here mirrors the Moore instruction, and McAllister does not argue that Moore was wrongly decided. She contends that the instruction here is objectionable because it differs in certain respects from CALCRIM No. 3551, the form supplemental instruction to be given to a potentially deadlocked jury, but she does not provide any reasoned argument as to why these deviations are objectionable. She also argues that several aspects of the instruction here "would have pressured the one juror in the minority," but she fails to cite any authority to support her point. Indeed, Whaley specifically rejected challenges to the Moore instruction similar to the ones she raises, including the contention that it is improper to encourage the jury to engage in reverse role-playing where the trial court knows the vote breakdown. (Whaley, supra, 152 Cal.App.4th at pp. 973-974, 982-983; see also People v. Peoples (2016) 62 Cal.4th 718, 784 [suggestion of reverse role-playing to deadlocked jury does not violate Gainer].) We agree with Whaley that nothing about the Moore instruction is "designed to coerce a verdict or unduly increase[s] ' "the inevitable pressure to agree felt by minority jurors." ' " (Whaley, at pp. 982-983, quoting Gainer, supra, 19 Cal.3d at p. 850.)
McAllister also claims that two other circumstances here establish coercion, but neither one she identifies alters our conclusion. First, she points to the fact that the jury's note disclosing a deadlock did not seek additional information from the trial court, but we agree with the court that the note contained an implied question about how the jury should proceed. Second, she takes issue with the court's specifying that the supplemental instruction applied only to the first count, but we fail to see how limiting the instruction to the first count increased the risk of coercion, given that everyone understood that was the only count on which the jury was deadlocked.
Finally, even if the trial court had erred by giving the supplemental instruction, we would conclude that the error was harmless. Although an instruction "that directs only minority jurors to rethink their position in light of the majority's views is prejudicial because it 'skews the deliberative process . . . toward the result favored by the majority,' . . . an erroneous instruction that 'does not threaten to distort the process of jury decision-making to the same degree' " requires reversal "only if the reviewing court, considering 'all the circumstances under which the charge was given,' finds it 'reasonably probable' the defendant would have obtained a more favorable result absent the error." (People v. Valdez (2012) 55 Cal.4th 82, 164, quoting Gainer, supra, 19 Cal.3d at pp. 854-855.) In Valdez, our state Supreme Court held that the giving of supplemental instructions was harmless where they "did not exert pressure on or in any way encourage jurors in the minority to abandon their independent judgment and acquiesce in a verdict simply because the majority had reached a verdict" but repeatedly emphasized that the jurors should not compromise their opinions just to reach a verdict. (Valdez, at p. 164.)
As with the Valdez instruction, the supplemental instruction here directed the jurors that "each of you must decide the case yourself, and you should do so only after a full and complete consideration of all the evidence with your fellow jurors," that "[i]t is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge, if you can do so without violence to your individual judgments," and that "[b]oth the People and the defendant are entitled to the individual judgment of each juror." (See People v. Valdez, supra, 55 Cal.4th at p. 164.) The instruction here also referred back to CALCRIM No. 3550, which contains similar admonitions. Even if some aspect of the instruction was objectionable, there was no prejudice because the trial court repeatedly emphasized that the jurors ultimately had to reach their own conclusions.
B. Any Deficiency in the Trial Court's Instruction on the Intent Element of Arson Was Harmless.
McAllister contends that we must reverse her felony conviction because "the trial court failed to instruct that a defendant is guilty of arson only if he or she acts with an intent to do an act, the direct, natural, and highly probable consequence of which is the burning of the relevant property." We conclude that any error was harmless.
The jury was instructed under CALCRIM No. 1515 that McAllister was guilty of arson if she "set fire to or burned or caused the burning of the property of another" and "acted willfully and maliciously." The instruction also specified that "[s]omeone commits an act willfully when he or she does it willingly or on purpose" and "[s]omeone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to defraud, annoy, or injure someone else."
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." ' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
Initially, the Attorney General argues that McAllister forfeited this claim by failing to object below. In doing so, the Attorney General relies on the principle that a defendant must request an amplifying or clarifying instruction in the trial court "to complain on appeal that the instruction [given] was incomplete." (People v. Cole (2004) 33 Cal.4th 1158, 1211.) Here, however, McAllister contends that the instruction incorrectly stated the law, a claim that is preserved despite a failure to object below. (See People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.)
McAllister claims that the instruction given was erroneous under In re V.V. (2011) 51 Cal.4th 1020. In that case, our state Supreme Court explained that malice can either be malice in fact, " 'a wish to vex, annoy, or injure,' " or malice in law, " 'an intent to do a wrongful act, established either by proof or presumption of law.' " (Id. at p. 1028.) Malice for arson "will be presumed or implied from the deliberate and intentional ignition or act of setting a fire without a legal justification, excuse, or claim of right." (Ibid.) A specific intent to burn the particular property is not required, but the fire cannot be accidental: at minimum, "there must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant . . . property." (Id. at p. 1029.)
We need not determine whether the instruction given correctly stated the law because any error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24) and it was not reasonably probable that McAllister would have received a more favorable verdict if the jury had been instructed as she contends it should have. (People v. Watson (1956) 46 Cal.2d 818, 836.) There was significant evidence that she acted with actual malice, given her threats to K.E. Even if the jury relied on a finding of implied malice, however, McAllister does not explain how the result would have been different had the jury been instructed in the manner she urges. By her own admission, she intentionally set fire to a plastic bag tied around the shopping cart's handle. A finding that that fire was highly probable to burn the combustible parts of the shopping cart was inescapable.
McAllister contends that prejudice is established because the jury was initially deadlocked on the first count and "deliberated for a substantial amount of time given the length of the trial." She also relies on the fact that the jury sent a note requesting "an expanded definition of malicious as [it] relates to the charge of Arson," to which the trial court responded, "The term 'maliciously' is defined in Instruction # 1515. No further definition is permitted. Please consider this response in conjunction with all the other instructions provided to you." We disagree that any of these circumstances suggest the case was close enough that the expanded definition of implied malice would have affected the verdict on the first count. Although the jury may have wanted more clarity about the concept of malice, for the reasons given above we cannot see how a guilty verdict would have been less likely had the jury been instructed in the manner McAllister urges.
C. Section 654 Does Not Require the Misdemeanor Sentence to Be Stayed.
Finally, McAllister claims that the trial court erred under section 654 by not staying the sentence for her misdemeanor conviction because her "two offenses were pursuant to an indivisible course of conduct with a single intent and objective." We conclude that substantial evidence supports the court's ruling.
Section 654, which applies to concurrent sentences like the one McAllister received (People v. Montes (2014) 58 Cal.4th 809, 898), provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) The determination whether section 654 applies "requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single ' "intent and objective" ' or multiple intents and objectives." (People v. Corpening (2016) 2 Cal.5th 307, 311.) " ' "If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' " (People v. Capistrano (2014) 59 Cal.4th 830, 885.)
We review the trial court's implicit determination that section 654 did not apply for substantial evidence. (People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1005.) In doing so, we consider the court's ruling " 'in the light most favorable to the respondent and presume the existence of every fact the . . . court could reasonably deduce from the evidence.' " (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378.)
Applying these legal principles, we first address whether McAllister completed both crimes through a single physical act. As our state Supreme Court recently explained, "[w]hether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (People v. Corpening, supra, 2 Cal.5th at p. 313.) Although McAllister suggests there might have been a single fire that spread, the expert testimony constituted substantial evidence that the two fires were independently set. Thus, there was substantial evidence that she committed two separate physical acts, one that resulted in the ignition of the shopping cart and one that resulted in the ignition of the brush.
We next address whether the two separate acts constituted a course of conduct with a single intent and objective. McAllister argues that her two offenses "were pursuant to an indivisible course of conduct with a single intent and objective" because the two fires were set "at essentially the same time . . . [and] occurred very close to each other." She relies on People v. Fry (1993) 19 Cal.App.4th 1334, in which the Court of Appeal held that under section 654 a defendant could not be punished for both arson of a carport and arson of a vehicle inside it because "[b]oth resulted from a single act"—his setting fire to the vehicle—"and, in light of the trial court's finding that [he] did not [specifically] intend to burn the carport, both shared the same criminal objective." (Fry, at p. 1340.) Here, in contrast, there was substantial evidence that the two fires resulted from two separate physical acts, and neither the trial court nor the jury made any finding about whether McAllister specifically intended to burn either the shopping cart or the brush, an issue distinct from whether she harbored the requisite intent to be found guilty of either offense. (See id. at p. 1339.) Moreover, she does not identify what her single intent and objective may have been.
Even if we were to accept that McAllister had a single intent and objective, "where a course of conduct is divisible in time it may give rise to multiple punishment even if the acts are directive to one objective." (People v. Louie (2012) 203 Cal.App.4th 388, 399.) Here, the evidence supporting a finding that she separately set the two fires also supports a finding that she had the "opportunity to reflect and to renew [her] intent before committing the next crime," defeating the application of section 654. (Ibid.)
McAllister also relies on the trial court's statement of its intent "to find that Count Two is a 654 to Count One." This statement was made during the original sentencing hearing, which the trial court continued after an unrelated legal issue arose about the sentence. Both later in that hearing and at the continued hearing, however, the court stated that it was imposing a concurrent sentence for the misdemeanor conviction, not a stayed sentence. Therefore, we agree with the Attorney General that it appears the court's reference to section 654 "was simply a misstatement."
Finally, McAllister alludes to the fact that in imposing the concurrent sentence the trial court stated that "the objectives of [the two] crimes were not independent of each other." The court did so, however, immediately after correctly observing that one of the criteria affecting the decision to impose a concurrent sentence is whether "the crimes and objectives . . . are predominantly independent of each other[.]" (See Cal. Rules of Court, rule 4.425(a)(1).) Read in context, the court's statement does not constitute a finding that McAllister had the same objective in committing both offenses such that section 654 applied.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.