Opinion
F060053 Super. Ct. No. 1211768
08-16-2011
THE PEOPLE, Plaintiff and Respondent, v. DAVID GARCIA MONTALBO, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 a judgment of the Superior Court of Stanislaus County. Ricardo Cordova, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant David Garcia Montalbo attacked and tried to rob his neighbors. After denial of his motion to suppress the gun found during a warrantless search of his house, he pled no contest to all charges and admitted all enhancement allegations in return for an indicated sentence of 32 years. On appeal, he contends (1) the trial court erred in denying his motion to suppress evidence seized during a warrantless search of his house, (2) the trial court erred in failing to consider the motion to withdraw the plea, (3) the trial court erred in failing to stay the sentence on the gang participation conviction, and (4) imposition of the gang enhancement constituted an improper dual use of facts. We will reverse and remand for the limited purpose of providing defendant an opportunity to make a motion to withdraw his plea.
DISCUSSION
I. Motion to Suppress
Defendant contends the trial court erred in denying his motion to suppress evidence of the gun found during a warrantless search of his house because no exigent circumstances justified the search. He does not dispute that the police were authorized to enter the house to arrest him, but he argues that once the house was cleared and secured, the officers should have sought a search warrant before searching the house.
The People counter that defendant's waiver of the right to appeal encompassed the right to appeal the denial of his motion to suppress. We need not decide whether the scope of the waiver extended to this issue because we conclude the trial court did not err in denying the motion.
A. Facts
On July 7, 2006, Officer Serratos was on duty in Modesto. At about 11:32 p.m., he was dispatched to investigate a call that a grandmother and her grandson had been pistol whipped and robbed. The grandmother had a cut above her right eye and a lump and cut on the back of her head. The grandson had blood on his face. The grandmother and grandson informed the officer that the perpetrator shot at the grandson three times, yelled "Night Owls," and lived directly across the street from them.
A minimum of 15 to 20 officers surrounded defendant's house. Officers in the back of the house were being struck by bottles and rocks thrown from the alley. Serratos believed defendant was inside his house, but he did not know how many people were present. Serratos knew the weapon had not been recovered and he believed the officers and the public were in danger because defendant was still armed.
To get defendant to come out of the house, the officers made very loud announcements over the patrol car speaker. Then the police department dispatch placed a telephone call into the house. Defendant's younger sister answered the telephone and said defendant was asleep and not coming to the door. Next, officers knocked loudly on the front door, announced themselves, and requested that someone come to the door. No one responded. A few minutes before 1:00 a.m., officers forced the door open. At that point, Serratos saw two Hispanic male adults in the living room—defendant was lying on the couch and another young man was lying on the floor. Officers commanded them to get up, put their hands up, and walk toward the door. Officers repeated the commands several times, but the men did not comply. Meanwhile, the rest of the house's occupants, including defendant's father and at least three children, were cleared from the house.
Serratos had no idea where the gun was and he worried that defendant had it with him on the couch. Serratos was uncomfortable standing in the doorway because he thought defendant was going to shoot one of the officers. Defendant lay on the couch, refusing to comply, with a smirk on his face. The officers warned him that they would use a taser on him, and they eventually did. As they removed defendant from the house, he repeatedly yelled, "Night Owls." Serratos knew defendant was referring to a gang.
The gun still had not been found, so the officers immediately started searching the house. The occupants of the house would be released shortly and allowed to re-enter the house, so Serratos believed the search for the gun needed to proceed immediately for the safety of both the officers and the occupants. Serratos believed that even though defendant was no longer in the house, the gun still posed a threat to the community. It might be used in another crime or it might be found by a child and fired accidentally. Serratos also believed his fellow officers were in danger from the neighbors. In less than 30 minutes, the officers found the gun in a cupboard just off the kitchen. It was a Taurus revolver with six shells in the cylinder, three of which were spent. Blood and hair were on the revolver's butt.
The trial court concluded the circumstances—it was 1:47 a.m. and three children would be left in the house—presented an exigency that justified the warrantless search.
B. Standard of Review
In reviewing the denial of a motion to suppress evidence, "[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362.)
C. Warrantless Search
A warrantless search is "'per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.' [Citation.]" (Arizona v. Gant (2009) 556 U.S. 332, _ [129 S.Ct. 1710, 1716]; see also People v. Redd (2010) 48 Cal.4th 691, 719.) The Fourth Amendment, however, is not absolute; it prohibits unreasonable police action, not all police intrusions that infringe on the sanctity of one's abode. "'[T]he ultimate touchstone of the Fourth Amendment,' ... 'is "reasonableness."' [Citation.] Therefore, although 'searches and seizures inside a home without a warrant are presumptively unreasonable,' [citation], that presumption can be overcome. For example, 'the exigencies of the situation [may] make the needs of law enforcement so compelling that the warrantless search is objectively reasonable.' [Citation.]" (Michigan v. Fisher (2009) _ U.S. _,_ [130 S.Ct. 546, 548].) Thus, where exigent circumstances exist, "the failure to comply with the warrant requirement is justified. [Citation.]" (People v. Frye (1998) 18 Cal.4th 894, 989, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) One recognized exigent circumstance that will support the warrantless entry of a home is the risk of danger to police or others. (Warden v. Hayden (1967) 387 U.S. 294, 298-99 ["The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others"]; People v. Celis (2004) 33 Cal.4th 667, 676.) The prosecution bears the burden of proving exigent circumstances that would justify a warrantless search or arrest. (Welsh v. Wisconsin (1984) 466 U.S. 740, 749-750; People v. Brown (1989) 210 Cal.App.3d 849, 855).
"'As a general rule, the reasonableness of an officer's conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. [Citation.] And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or "hunches," but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience .....' [Citation.]" (People v. Duncan (1986) 42 Cal.3d 91, 97-98.) The standard is an objective one: "An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the] action.' [Citation.] The officer's subjective motivation is irrelevant. [Citations.]" (Brigham City v. Stuart (2006) 547 U.S. 398, 404, italics omitted; see also People v. Ortiz (1995) 32 Cal.App.4th 286, 292 [facts known to officer must demonstrate his or her belief in existence of exigent circumstances was objectively reasonable].)
The presence of a hidden weapon can create a danger to both officers and the public. In New York v. Quarles (1984) 467 U.S. 649 (Quarles), the police believed the suspect hid a weapon in a supermarket, thereby posing a real and immediate threat to public safety. (Id. p. 653.) The Court stated, "[s]o long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it." (Id. at 657.) Although Quarles created a public safety exception to the requirement of administering Miranda warnings before custodial interrogation (Quarles, supra, at p. 653 ["we believe that this case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda"]), its discussion about the need for officers to act quickly to protect the public safety is instructive. The court concluded that the discovery of the firearm in a public place was imperative to protect officer and public safety. (Id. at pp. 657-660.)
Miranda v. Arizona (1966) 384 U.S. 436.
Other courts have concluded that a warrantless search for a weapon, based on the concern for officer and public safety, is permissible under the exigent circumstances exception to the warrant requirement. For example, in United States v. Antwine (8th Cir. 1989) 873 F.2d 1144 (Antwine), the defendant pointed a handgun at two FBI agents who were speaking to him at his front door. The agents backed off, and the defendant shut his door. About twenty minutes later, the defendant came outside and was arrested in his front yard. An agent then entered the house and conducted a protective sweep. He discovered that there were two children in the house. He decided to search the house for the gun so as not to leave the children alone with the weapon. His sole purpose for searching for and recovering the weapon was the safety of the children. Guided by Quarles, the court concluded the warrantless seizure of the handgun, necessitated by the exigency, was not unreasonable. (Antwine, supra, at pp. 1145-1147.) The court explained: "The clear implication of Quarles is that a warrantless seizure of a weapon may be considered 'reasonable' within the meaning of the Fourth Amendment when justified by an officer's legitimate concern for someone's safety." (Id. at p. 1147.)
Similarly, in Sturdivant v. United States (D.C. 1988) 551 A.2d 1338, officers arrested the defendant at his house after receiving information that he had shot someone with a sawed-off shotgun. The codefendant, who was also at the house, informed the officers that the gun was in the attic crawlspace. While the defendant was being taken to police headquarters, officers conducted a warrantless search for the gun, which they found and seized. (Id. at pp. 1339-1340.) In finding that exigent circumstances existed, the court stated: "At the time the police commenced the search, they knew that a sawed-off shotgun had been used in a serious crime and that it had not been retrieved. We have observed that the presence of such weapons creates a special exigency because of their potential threat to human life.... In addition, the police knew that if the gun remained in the house after [the defendant] and [the codefendant] were removed, the other members of the family who had not been arrested would still have access to it and could use or destroy it." (Id. at p. 1342.)
In State v. Brumfield (La.App. 2006) 944 So.2d 588, the officer testified that after the defendant was placed in the patrol vehicle, he went back to the trailer to search for the gun because he knew small children resided at the trailer, and he feared that one of them might find the gun. (Id. at p. 596.) The court stated: "We find that in the instant matter, the highly probable threat of the presence of a handgun at the trailer where several children lived created a special exigency for [the officer]. Under these exigent circumstances, it was not unreasonable for [the officer], in protecting the safety and welfare of children, to search for and seize the defendant's loaded handgun from the trailer immediately following the securing of the defendant in his police unit ...." (Id. at p. 597.)
Automobile cases have employed the same rationale—that the presence of a weapon may create an exigency because of their potential threat to human life. For example, in Cady v. Dombrowski (1973) 413 U.S. 433, the Supreme Court concluded that the warrantless search and seizure of a weapon by a police officer from the trunk of a vehicle towed to a private garage was not unreasonable. (Id. at pp. 442-447.) The court explained that the justification of "concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle" was immediate and constitutionally reasonable. (Id. at p. 447.)
And in Commonwealth v. Stewart (Pa.Super. 1999) 740 A.2d 712, after receiving information about a shooting from a vehicle, police officers arrested the defendant who was a passenger in the suspect vehicle and was identified by the victim as one of the shooters. The defendant and the driver were taken into custody. They were patted down, but no weapons were found on their persons. An officer conducted a warrantless search of the vehicle and found two handguns under the floor mats. (Id. at p. 714.) In finding exigent circumstances, the court stated: "The officers were faced with two equally difficult and dangerous situations: innocent persons finding the gun and getting hurt as they handled it and an officer being injured by the gun as he stepped into the car to turn off the ignition. The officers and the public were in danger if the weapons were not recovered; thus, there was a need for immediate police action." (Id. at pp. 718-719.)
The rationale of these cases supports our conclusion that the facts of the present case created an exigency that reasonably required an immediate search for the gun. The officers reasonably intended to allow the house's occupants to return to the house rather than force them to wait outside the secured house while the officers obtained a search warrant. It was late at night and the occupants included three children. The possible presence of a gun in the house created the danger that the gun could be used in another crime or could be found and used by one of the children. The immediate search of the house was not unreasonable, and the court did not err in denying the motion to suppress the gun found in the search.
II. Motion to Withdraw Plea
Defendant argues that the trial court erred in failing to consider his motion to withdraw his plea. In the alternative, he contends defense counsel was ineffective for failing to make a proper motion to withdraw the plea. We will remand for the limited purpose of allowing defendant an opportunity to be heard on a motion to withdraw his plea.
A. Facts
At the start of the sentencing hearing, defense counsel informed the court that defendant wished to withdraw his plea. The following then occurred:
"[DEFENSE COUNSEL]: ... I told him I couldn't represent him in that matter, and the Court would have to appoint someone to evaluate his ability to do that.
"[PROSECUTOR]: If I can intercede at this point? You do not have to do that. You can take all knowledge available to you and your experience with this case into consideration in determining whether or not to exercise your discretion and appoint new counsel. I would like to state for the record what [defendant] has done since the inception of this case regarding dilatory tactics."
The prosecutor explained that retained counsel had been hired, relieved, and hired again. Multiple continuances had been granted and multiple motions had been filed. The discussion continued:
"[PROSECUTOR]: [¶] ... [¶] This is not a case where defendant was caught off guard or has some kind of notice issue to present to the Court or some kind of claim of ineffective assistance of counsel since you had this case for a long time. This is nothing more than a dilatory tactic. Thirty-two years in state prison is what he's facing right now, as discussed. He ple[d] guilty to the entire information, no plea bargaining, and now on the day of sentencing he comes forward requesting to withdraw the plea. This is on its face untimely, so I'm going to exercise your discretion and deny [defendant's] request to continue the sentencing based on all matters before you and my recitation of the court appearances in this case.
"It's interesting to note, Your Honor, in the probation report some of the denials from [defendant].... And I'm only saying this—I'm putting [his] character at issue since he's the one making the representation he wants to withdraw the plea. [Defendant] says he's not an active gang member but associates with gang member[s]. He never wanted to be part of the gang, he does not see the point of it. When asked if he had gang tattoos, he doesn't have any. [¶] That is a blatant misrepresentation of who is in front of you right now. If you take a look at [defendant] and look at the five braids in the back of his hair, Your Honor. Five braids on the back of a Norteno['s] head means four plus one for 14. Classified as a gangster. He's in court right now denying he's a gang member, asking you to exercise your discretion to allow another continuance. That's an absolute miscarriage of justice, so I'm asking that he be sentenced right now to what you fronted, which is 32 years.
"THE COURT: [Defense Counsel].
"[DEFENSE COUNSEL]: Your Honor, I'm in the odd position of advocating for [defendant] to basically—the way withdrawals of pleas go down is they attack counsel and say counsel didn't do something correctly. And obviously it's difficult for me to advocate zealously on behalf of [defendant] in that regard. It puts me in a precarious position. [¶] However, [the prosecutor] is suggesting that this is a request for a continuance. I had discussed the possibility of continuing the sentencing for a short while with [defendant] based on the fact that his family is out of state, his mother recently died, and they're in Texas taking care of those arrangements and would be back Monday, and kind of discussed with [defendant] his options. [¶] And towards the end of that discussion I told him, you know, I can throw this on the table. If you're not happy about this arrangement, you can ask the Court to withdraw your plea. I can't advise you on that because the way that you do that is you basically argue counsel didn't do his job, and so it's difficult for me to argue that. I don't know what all of the bases for [defendant] would be. The bases are statutory, and an attorney would have to evaluate those statutory bases to determine whether or not there is some articulable basis for [defendant] to withdraw his plea.
"I think that's what's incumbent upon the Court to give [defendant] his rights and opportunity to explore his situation, and I think that's what the Court should do. The Court should appoint the Public Defender's Office probably to explore the possibility of whether or not [defendant] has a basis to withdraw his plea.
"THE COURT: Counsel, I'm very familiar with this case. It had been set for trial several times. I know this was a case that every applicable motion was filed. There [were] experts that were hired. I was not involved in whether or not those fees would have been approved or not, but we did end up continuing the trial on at least one occasion to accommodate the defendant's expert, the illumination study person that was going to testify in this case. And I'm going to deny [defendant's] request to have counsel appointed.
"It's clear [in] this case, in my discussions with counsel, we did have victims that were willing and able to testify. Although 32 years is a lot [of] years for a man [defendant's] age, the Court did give [him] a very substantial break in terms of his total sentence. He would have been looking at in excess of 40 years in the state prison. I didn't figure out[ ... ] even at midterm he's probably looking at 45 years in the state prison. I fronted 32 years and agreed to run all the counts concurrent to each other, so I'm going to deny the defendant's request to have counsel appointed to review the appropriateness of the plea.
"The Court spent substantial time with [defendant] and counsel determining the appropriate sentence that the Court would give in this case. This case has been litigated to its maximum extent, and, frankly, I don't see any basis to withdraw the plea based on my experience with this case."
At this point, the court proceeded to sentencing.
B. Analysis
A motion to withdraw a plea may be made "at any time before judgment" and must demonstrate good cause for the withdrawal. (Pen. Code, § 1018; People v. Wharton (1991) 53 Cal.3d 522, 585.) "'Good cause' means mistake, ignorance, fraud, duress or any other factor that overcomes the exercise of free judgment and must be shown by clear and convincing evidence. [Citation.] The grant or denial of such a withdrawal motion is 'within the sound discretion of the trial court and must be upheld unless an abuse thereof is clearly demonstrated.' [Citation.]" (People v. Ravaux (2006) 142 Cal.App.4th 914, 917; People v. Fairbank (1997) 16 Cal.4th 1223, 1254 ["a reviewing court must adopt the trial court's factual findings [on a motion to withdraw a plea] if substantial evidence supports them"].)
Here, defendant desired to withdraw his plea and defense counsel requested that the trial court appoint new counsel to investigate the bases upon which to make the plea. Without giving defendant an opportunity to state his concerns, the court denied his request for appointment of new counsel to review the appropriateness of a motion to withdraw the plea and stated that it saw no basis for withdrawal of the plea. The court did not inquire into defendant's understanding of the plea agreement, or whether defendant's plea was as a result of "'[m]istake, ignorance, or any other factor overcoming the exercise of free judgment.'" (People v. Brown (1986) 179 Cal.App.3d 207, 213-214.) Although the court considered the prospective motion and found no basis for it, the court did so without any input from defendant, who was not provided the opportunity to be heard and make his case for withdrawal of the motion. (Id. at p. 216 [if counsel refuses to make defendant's motion to withdraw plea, trial court should hold a hearing, attempt to determine the basis of the conflict and decide, in its discretion, whether substitute counsel should be appointed to represent the defendant; citing People v. Marsden (1970) 2 Cal.3d 118].) The matter must be remanded to the trial court to give defendant the opportunity to pursue his motion to withdraw his plea.
III. Sentencing Issues
Defendant raises two challenges to his sentence. First, he asserts that the trial court erred in failing to stay the substantive gang offense sentence pursuant to section 654. Second, he contends in his supplemental brief that the gang enhancement and the firearm enhancement were based on a dual use of facts in violation of section 1170.1, subdivision (f). We conclude defendant's waiver of appellate rights waived these sentencing issues.
A. Facts
At the change of plea hearing, the court told defendant he would be pleading no contest to all charges and admitting all enhancement allegations in exchange for an indicated sentence of 32 years. The court then informed defendant of the consequences of the plea, one of which the court stated as follows: "And I'll be imposing various parts of your sentence. You must state your objection before you leave the courtroom, or you will have given up your right to appeal any part of the sentence." Defendant stated that he understood. Defendant also stated that he understood the nature of the charges, had time to speak to defense counsel, and was pleading freely and voluntarily. The prosecutor requested a waiver and the following occurred:
"[PROSECUTOR]: And one more thing. I would like [defendant] to waive all appellate rights as it pertains to his plea today.
"THE COURT: I told [defendant] that he would have to state any objection to his sentence that would be at the time of the sentencing, or he would be giving up his right to appeal any part of his sentence. [¶] Do you want anything in addition to that?
"[PROSECUTOR]: Just a general waiver of all appellate rights as it pertains to his plea taken today in court so he doesn't get cold feet in the future and try to make some representation that he didn't freely waive at this point.
"THE COURT: [Defendant], do you agree to waive your appellate rights concerning this plea?
"THE DEFENDANT: Yes, sir.
"THE COURT: And you concur in that waiver, [defense counsel]?
"[DEFENSE COUNSEL]: Yes, Your Honor."
The court proceeded to take defendant's no contest plea. The court found that defendant understood the nature of the crimes and the consequences of his plea; that he knowingly, intelligently, and voluntarily waived those rights; and that there was a factual basis for the plea.
B. Analysis
"If ... the defendant agrees to a bargain which includes a specific or indicated sentence, and if that is the sentence actually imposed, the defendant's waiver will foreclose appellate review of the sentence; any challenge to the sentence will be deemed a challenge to an integral component of the bargain. [Citations.] The waiver will not cover claims that the trial court imposed a sentence in excess of its fundamental jurisdiction or the terms of the bargain, but the waiver will not allow review of alleged error in the computation or imposition of the sentence, including application of section 654. [Citation.]" (In re Uriah R. (1999) 70 Cal.App.4th 1152, 1157-1158, italics added, citing People v. Panizzon (1996) 13 Cal.4th 68, 78-79, 85-86 & People v. Nguyen (1993) 13 Cal.App.4th 114, 121-124.) Furthermore, when a specified or indicated sentence is given in return for a plea, "appellate courts are not inclined to find error even though the trial court acts in excess of jurisdiction in reaching that figure, as long as the court does not lack fundamental jurisdiction. (People v. Jones [(1989)] 210 Cal.App.3d 124, 132-136 [defendant estopped from arguing improper dual imposition of enhancement]; see also People v. Beebe (1989) 216 Cal.App.3d 927, 932-933 [defendant was estopped from withdrawing from plea bargain where 'straight' felony would be reduced to misdemeanor]; People v. Olson [(1989)] 216 Cal.App.3d 601, 603 [court declines to redress dual-use-of-facts error].) The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to 'trifle with the courts' by attempting to better the bargain through the appellate process. (People v. Beebe, supra, 216 Cal.App.3d at p. 932.) It is especially appropriate to enforce an appeal waiver as to such issues." (People v. Nguyen, supra, at pp. 122-123 [dual-use-of-facts claim encompassed by waiver].)
According to these principles, we conclude defendant's dual-use-of-facts claim was waived by his plea agreement. (People v. Nguyen, supra, 13 Cal.App.4th at pp. 122-123.) Similarly, his challenge under section 654 was also waived. "By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record." (Cal. Rules of Court, rule 4.412(b); People v. Hester (2000) 22 Cal.4th 290, 296 [when defendant agrees to a maximum indicated sentence as part of a negotiated plea, former Cal. Rules of Court, rule 412(b) applies if the defendant "did not raise a section 654 objection ... at the change of plea hearing"]; People v. Nguyen, supra, at p. 124 [§ 654 claims encompassed by appeal waiver, citing former Cal. Rules of Court, rule 412(b)].) Defendant's section 654 claim was not asserted when the indicated sentence was recited on the record. Nor was a claim asserted when defendant was sentenced. Defendant was clearly informed that he was waiving his right to appeal his sentence, and the issues he raises here were encompassed by that waiver.
We note that defendant objected to the sentence only on the ground that it constituted cruel and unusual punishment.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for the limited purpose of allowing defendant to file his motion to withdraw his plea pursuant to section 1018. If defendant does not file a motion, or files a motion that is denied, the trial court shall reinstate the judgment.
Kane, J.
WE CONCUR:
Gomes, Acting P.J.
Franson, J.