Opinion
B229198
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. ELLIOT R. NEWMAN, Defendant and Appellant.
Law Offices of Allison H. Ting, Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael R. Johnsen and Eric E. Reynolds, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA357338)
APPEAL from a judgment of the Superior Court of Los Angeles County, Monica Bachner, Judge. Reversed in part, modified and remanded.
Law Offices of Allison H. Ting, Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael R. Johnsen and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Elliot R. Newman (defendant) pleaded no contest to kidnapping (Pen. Code, § 207, subd. (a) ), corporal injury to spouse/cohabitant/child's parent (§ 273.5, subd. (a)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and two counts of criminal threats (§ 422). On appeal, defendant contends that the trial court abused its discretion in denying defendant probation and sentencing him to state prison. We affirm the judgment regarding the trial court's denial of probation, reverse the judgment as to the imposition of a $400 domestic violence fine, modify defendant's sentence, and remand to the trial court to amend the abstract of judgment accordingly.
All statutory citations are to the Penal Code unless otherwise noted.
BACKGROUND
The factual background is based on the preliminary hearing.
B.J., defendant's girlfriend, testified that on April 24, 2009, she made a report to the police that on April 23, 2009, defendant left threatening messages on her voicemail. Defendant had been staying at B.J.'s house and was angry that B.J. had not come home straight from work. One of the messages defendant left on B.J.'s voicemail said, "Call the motherfucking police, bitch. I am going to come over there and shoot you in the motherfucking head." The messages caused B.J. to feel concerned for her safety and afraid to go home.
B.J. testified that on May 20, 2009, she was in the area of Fourth Avenue and 21st Street, when defendant approached her in a car. Defendant told B.J. to get in the car, but B.J. did not want to get in. Defendant grabbed B.J.'s arms and pulled her toward the car, and B.J. started screaming for help. Defendant continued to try to force B.J. into the car. B.J. held onto the car to avoid being placed in it, but defendant was stronger than she. When B.J. was in the car, she grabbed the steering wheel, and defendant bit her arm to get B.J. to let go of the wheel.
Ben Jeckel testified that he heard a woman screaming and saw defendant grabbing B.J. Jeckel ran toward defendant and B.J., and saw defendant dragging B.J. to a car and putting her into the driver's door. B.J. was flailing her arms, kicking and screaming. When defendant and B.J. were partially in the car, Jeckel told defendant to stop and let the woman go. Jeckel struggled with defendant to try to take the keys out of the ignition, but defendant bit Jeckel's arm and started the car. The car started to move about five to ten feet, and Jeckel slid with the car. The car sped faster, and Jeckel was forced to let go.
B.J. testified that while defendant struggled with Jeckel, she tried to get out of the car through the passenger door, but defendant drove the car and she was forced into it. Once defendant drove the car away, he hit B.J. in the face. B.J. had scratches on her neck, but she could not remember if defendant touched her neck because "everything happened so fast." Defendant told B.J., "We're gonna die. It's over." B.J. was scared, and concerned that defendant was going to kill her. B.J. told defendant to calm down. After traveling three blocks, defendant pulled over and B.J. got out.
B. Procedural Background
The District Attorney of Los Angeles County filed an information charging defendant in count 1 with kidnapping in violation of section 207, subdivision (a), in count 2 with criminal threats in violation of section 422, in count 3 with corporal injury to spouse/cohabitant/child's parent in violation of section 273.5, subd. (a), in count 4 with assault by means likely to produce great bodily injury in violation of section 245, subdivision (a)(1)), and in count 5 with criminal threats in violation of section 422. Defendant pleaded no contest to all charges alleged in the information, and the parties stipulated to a diagnostic evaluation pursuant to section 1203.03.
On October 19, 2010, the trial court found defendant ineligible for probation and sentenced defendant to a term of 4 years in state prison, consisting of the low term of 3 years as to count 1, a concurrent term of 16 months on counts 2 and 5, a concurrent term of 2 years on count 3, and a consecutive term of 1 year on count 4. The trial court was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a $200 parole restitution fine (§ 1202.45) which was stayed, a $150 court security assessment (§ 1465.8, subd. (a)(1)), a $150 criminal conviction assessment (Gov. Code, § 70373), and a $400 domestic violence fine (§ 1203.097, subd. (a)(5)). Defendant was credited with 279 days in custody consisting of 187 actual custody credits and 92 conduct credits.
The trial court stated that the sentence on count 4 was to run consecutively, but the Abstract of Judgment provided that the sentence was to run concurrently.
DISCUSSION
A. Denial of Probation
Defendant contends that the trial court abused its discretion when it imposed a prison term rather than granting him probation. The trial court did not abuse its discretion.
1. Relevant Proceedings
On April 28, 2010, as part of a plea agreement, defendant pleaded no contest to all charges alleged in the information. The prosecutor agreed that defendant would be evaluated by the Department of Corrections and Rehabilitation (department) for a period of 90 days pursuant to section 1203.03, and defendant was to return to the trial court for a sentencing hearing.
On October 15, 2010, the department filed a diagnostic study and recommendation (diagnostic report). The diagnostic report indicated that there was a difference of opinion whether to recommend probation for defendant. A correctional counselor recommended that probation be denied and defendant be sentenced to state prison, and a psychologist recommended the opposite. The diagnostic report stated that because of the difference in opinion between the correctional counselor and the psychologist, an administrative review was performed, and based thereon the Associate Warden determined that defendant was a suitable candidate for probation.
The diagnostic report, and the psychological evaluation, stated that it was believed that the probability of defendant reoffending was "less than moderate." The correctional counselor who recommended that probation be denied, stated in his staff recommendation, "The instant offense was a violent premeditated offense. . . . The victim of the instant offense is the same victim of two previous domestic violence cases involving [defendant] in 2001 and 2009, which establishes a history of violent activity with this victim. . . . [Defendant] has an extensive criminal history that includes three prior felony convictions and crimes of violence, grants of probation and probation violations. The instant offense is consistent with his prior criminal history. His criminal history is escalating in seriousness."
The psychological evaluation stated, "[Defendant said] that in their altercation he did not choke her. . . . [¶] . . . [¶] In discussing the instant offense, [defendant] claimed he did not assault [B.J.]. Moreover, [defendant] took the position [B.J.] was somehow pursuing him."
The staff recommendation stated, "[Defendant] stated that he did put the victim in his vehicle and drove approximately two blocks before he stopped and she got out. However, [defendant] denied threatening [B.J.] or assaulting the victim in any way. [Defendant] stated that he only wanted to talk to her. . . . [¶] . . . [¶] [Defendant] denied wrongdoing, failed to show remorse and made excuses to minimize his behavior. [Defendant] stated that he never threatened or assaulted the victim. He said that he pays the victim's rent/mortgage because they had a dating relationship. He stated that the victim concocted the story about the instant offense because she was angry. He said that he had recently told her that he was not going to give her anymore money."
On October 19, 2010, a probation officer's report was filed recommending that probation be denied. The report stated that from August 1986, through April 2000, defendant had three felony and three misdemeanor convictions. In 1986 and 1987, defendant was convicted of possessing narcotics, a controlled substance, in violation of Health and Safety Code section 11350, subdivision (a). In 1993, defendant was convicted of carrying a concealed weapon in a vehicle, in violation of § 12025, subdivision (a). In 1997, defendant was convicted of carrying a concealed weapon in a public place, in violation of § 12025, subdivision (a)(2). In 1998, defendant was convicted of possessing narcotics, a controlled substance, in violation of Health and Safety Code section 11350, subdivision (a), which in 2001 was reduced from a felony to a misdemeanor and dismissed. In 2000, defendant was convicted of driving without a license, in violation of Vehicle Code section 14601.1, subdivision (a).
The probation officer's report also stated, "[B.J.] is the same victim . . . as in [defendant's] two previous domestic violence cases from 2001 and in April of 2009. [¶] . . . [Defendant's] alleged involvement in the present offense placed the victim in great danger. It is apparent the defendant was waiting nearby the victim's residence, since he grabbed her soon after she was dropped off. The defendant forced her into his vehicle and threatened to kill them, as he drove off. It is believed the defendant's threats should be taken seriously and the victim will continue to be in grave danger. There is no reason to consider the defendant a suitable candidate for community supervision through probation and this will not protect the victim."
At the October 19, 2010, sentencing hearing, the trial court stated that it read the diagnostic report, the probation report, and the preliminary hearing transcript. The trial court stated, "Well, let me indicate what my problem is, and I do not—even looking at the psychiatrist's report, so taking—looking at that, the psychiatrist indicated that [defendant] claimed he did not assault the victim and that he took the position that she was no pursuing him and they gave explanations, and because he is not willing to admit that he did anything wrong in assaulting her—and I looked at the preliminary-hearing transcript. The victim said there was—the choking was not established in the preliminary hearing; however, the preliminary hearing indicated that she was hit in the face—at a minimum that she was hit in the face, and the defendant says he did not assault her, which leads the court to believe that he would not be suitable on probation because he was had prior incidents with the witness. [¶] And so you can respond to that. That's what I told you yesterday, but now I'm being more explicit. I read—since I spoke with counsel yesterday at which time I only had the opportunity to review the report, I did go back and look at the preliminary-hearing transcript as well as the probation report to see if this was an issue or not. And it continues to be an issue to that court, nor have I heard anything to convince the court that even in the psychiatrist's report the defendant fails to acknowledge that he did anything wrong."
Defendant's counsel argued that defendant is not saying that he did not do anything wrong; he was just trying to explain what really happened. The trial court granted the request of defendant's counsel that defendant be permitted to make a statement. Defendant stated, "Ma'am, I'm sorry for everything that I had done, ma'am. I didn't mean to do nothing like this, ma'am. That's all I wanted to do, was go to my wife. That's it. That's all I wanted to do. I don't want to lose—I'm very sorry. I didn't mean to, ma'am. I didn't mean to do it. I just had too much to drink. That's it, ma'am. That's all I had, was too much to drink. [¶] But I'm very sorry. If you just let me out, I won't even contact the witness. I won't even say nothing to her. I didn't mean—I haven't. I won't even—I mean, ma'am, I'm sorry, ma'am. I feel that—I'm sorry. I—that's all. I'm begging for probation. That's all. You have to try me. Give me a couple of months to see how I do, ma'am. [¶] . . . [¶] I'm just asking if the court would just give me one more chance out on the street. That's all. I'm begging for one more chance. I've been in for six months sitting here and thinking about what I done. I didn't mean to do it. That's all I wanted to say. One more chance to go to my wife and kids. And if she was here, if the victim was here, I'd tell her I'm sorry, too. I didn't mean, you know, to do it."
The trial court stated, "Okay. The court has a concern for the safety of the victim. The court believes that the report does not consider the facts that the defendant claims he did not even assault—forget the strangling, didn't hit, didn't assault her at all. There's also no consideration of the good samaritan. [¶] The court, however, would be giving 4 years which is the low term of 3 years plus 1 year which is one-third the mid term [sic] on count 4, and I'd run the other counts concurrent."
Defense counsel then again argued for probation. The trial court responded, "Okay . . . I took seriously what it said in here, and I expressed what the concern is, that the report indicates that the defendant has not acknowledged that he assaulted in any way the victim. [¶] Taking a woman in a car four blocks down the street against her will screaming and yelling when a good samaritan has to enter to intervene, I think it's been minimized in the description. But beyond that, there's an assault that occurred in the vehicle, and he won't acknowledge that. And so I'm not going to give him probation. I do not believe that the report accurately considered the circumstances. [¶] So, I've reviewed it, I've considered it. I've considered all of your arguments, but I do not believe that he is suitable candidate for probation. With this charge it would have to be an extraordinary circumstances or unusual circumstances to make him suitable for probation, and based on his lack of—he's sorry that he was caught, but I still don't see remorse. I don't see acknowledgment of the acts. [¶] He does have a criminal record that was dated, so it was a long time, but then this is a very extremely serious charge after this dated criminal history. I do not believe he's suitable for probation; however, taking into account all of the factors that you have described, I will be giving him the low term on the most serious count . . . ."
2. Standard of Review
Probation is "an alternative form of punishment in those cases when it can be used as a correctional tool." (People v. Edwards (1976) 18 Cal.3d 796, 801; People v. Balestra (1999) 76 Cal.App.4th 57, 67.) Trial courts have "wide discretion" in granting or denying probation. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 364.)
Our review of a denial of probation is for an abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; People v. Edwards, supra, 18 Cal.3d at p. 807.) A trial court's "decision denying probation will not be disturbed on appeal except upon a clear showing the trial court abused its discretion in an arbitrary or capricious manner. [Citations.]" (People v. Kronemyer, supra, 189 Cal.App.3d at pp. 364-365.) "On appeal, . . . '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) A defendant bears a "heavy burden" in showing that a trial court abused its discretion in denying a request for probation. (People v. Kronemyer, supra, 189 Cal.App.3d at p. 365.)
3. Analysis
A trial court must determine if a defendant is eligible for probation. (Cal. Rules of Court, rule 4.414(a) .) Defendant does not dispute that he was statutorily ineligible for probation, "[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation." (§ 1203, subd. (e).) For those cases that are statutorily ineligible for probation, rule 4.413(b) directs trial courts to apply the criteria in rule 4.413(c) to determine if the case is "unusual."
All rules citations are to the California Rules of Court.
Section 1203, subdivision (e) provides in pertinent part, "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons: [¶] . . . (4) Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony. [¶] (5) Unless the person has never been previously convicted once in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony, any person who has been convicted of . . . kidnapping . . . ."
Rule 4.413(c) provides, "Facts showing unusual case[.] [¶] The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [¶] (1) Facts relating to basis for limitation on probation[.] A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: [¶] (A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and [¶] (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense. [¶] (2) Facts limiting defendant's culpability[.] A fact or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including: [¶] (A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence; [¶] (B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and [¶] (C) The defendant is youthful or aged, and has no significant record of prior criminal offenses."
Defendant contends that there are facts limiting defendant's culpability under rule 4.413(c)(2) compelling this to be deemed an "unusual case in which probation may be granted if otherwise appropriate. . . ." Defendant argues that he had an insubstantial criminal history, was drunk at the time of the incident, was unlikely to repeat the behavior, and was in his 50's. These facts, however, do not satisfy the criteria under rule 4.413(c)(2) to overcome the statutory presumption that defendant was not eligible for probation. They do not establish that: (A) defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense; (B) the crime was committed because of a mental condition not amounting to a defense or (C) defendant was aged and had no significant record of prior criminal offenses.
The October 21, 2010, abstract ofjudgment, diagnostic report, and probation report provide that defendant's date of birth is January 5, 1963, indicating that defendant was 47 years old at the time he was sentenced.
Even if the criteria under rule 4.413(c) were satisfied to overcome the statutory presumption that defendant was not eligible for probation, the trial court could determine that "probation . . . [would not] otherwise [be] appropriate." (Rule 4.413(c).) If the case is "unusual," then the trial court should apply the criteria in rule 4.414 to decide whether to grant probation. (Rule 4.413(b).)
Rule 4.414 provides, "Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the defendant. [¶] (a) Facts relating to the crime[.] Facts relating to the crime include: [¶] (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] (2) Whether the defendant was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional injury; [¶] (5) The degree of monetary loss to the victim; [¶] (6) Whether the defendant was an active or a passive participant; [¶] (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶] (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and [¶] (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime. [¶] (b) Facts relating to the defendant include: [¶] (1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; [¶] (2) Prior performance on probation or parole and present probation or parole status; (3) Willingness to comply with the terms of probation; [¶] (4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; [¶] (5) The likely effect of imprisonment on the defendant and his or her dependents; [¶] (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶] (8) The likelihood that if not imprisoned the defendant will be a danger to others."
--------
The evidence adduced at the preliminary hearing is sufficient to show that the crimes were serious and involved defendant's active participation. There is evidence that defendant left threatening messages on B.J.'s voicemail, including that he was going to shoot B.J. in the head. One month later, defendant engaged in a violent act of kidnapping. Defendant dragged B.J. into his car against her will. Jeckel attempted to intervene. Jeckel struggled with and was bitten by defendant, and was dragged by the car driven by defendant. When defendant and B.J. were in the car, defendant hit B.J. in the face, and told B.J., "We're gonna die. It's over."
There is evidence that B.J. was vulnerable—she failed in her attempts to resist defendant's efforts to throw her into the car and kidnap her because defendant was stronger than she. Defendant inflicted physical or emotional injury. Defendant's voicemail messages caused B.J. to feel concerned for her safety and afraid to go home. Defendant hit B.J. in the face, and B.J. was scared—concerned that defendant was going to kill her. Defendant also bit Jeckel in the arm, and Jeckel was dragged by the car driven by defendant.
The diagnostic report and the psychologist stated that it was believed that the probability of defendant reoffending was "less than moderate"-not the strongest evaluation from defendant's standpoint. The correctional counselor who recommended that probation be denied stated, "The instant offense was a violent premeditated offense. . . . The victim of the instant offense is the same victim of two previous domestic violence cases involving [defendant] in 2001 and 2009, which establishes a history of violent activity with this victim. . . . [Defendant] has an extensive criminal history that includes three prior felony convictions and crimes of violence, grants of probation and probation violations. The instant offense is consistent with his prior criminal history. His criminal history is escalating in seriousness."
The psychological evaluation contained in the diagnostic report stated that defendant claimed he did not assault B.J., and took the position B.J. was somehow pursuing him. The staff recommendation stated that defendant denied threatening B.J. or assaulting her in any way. It also provided that defendant denied wrongdoing, failed to show remorse and made excuses to minimize his behavior.
During the sentencing hearing, defendant said, "I'm sorry for everything that I had done," he did not mean to do "it," and he had too much to drink. Defendant admitted to the correctional counselor that he put B.J. in his vehicle. Given defendant's previous denials that he did not assault B.J., however, his apology could be viewed as inadequate. The trial court could conclude reasonably that defendant's purported apology was contrived and insincere.
Defendant contends that "the trial court's review and consideration of the diagnostic report was outside the bounds of reason." As defendant concedes, however, "the recommendation of the diagnostic facility is not . . . binding on the trial court. . . ." "[I]t is simply one factor among others, both factual and legal, to be considered by the judge in pronouncing sentence." (People v. Tang (1997) 54 Cal.App.4th 669, 683.) The trial court considered the diagnostic report's recommendation that defendant be granted probation, arrived at only after there was a split of opinion between the correctional officer, who recommended that probation be denied and defendant be sentenced to state prison, and the psychologist, who recommended that probation be granted. The trial court rejected the diagnostic report's recommendation, however, because the report did not consider that defendant claims he did not assault B.J. It also did not consider Jeckel's attempts to intervene and defendant's violent exchange with him, including causing Jeckel to be dragged from the car.
Defendant failed to meet his "heavy burden" of showing that the trial court abused its discretion in denying his request for probation. The trial court did not abuse its discretion.
B. Sentencing Errors
The trial court imposed a $400 domestic violence fine pursuant to section 1203.097, subdivision (a)(5). Section 1203.097 provides in relevant part, "(a) If a person is granted probation for a crime in which the victim is a person defined in Section 6211 of the Family Code, the terms of probation shall include all of the following: . . . [¶] (5) A minimum payment by the defendant of four hundred dollars ($400) to be disbursed as specified in this paragraph. If, after a hearing in court on the record, the court finds that the defendant does not have the ability to pay, the court may reduce or waive this fee." Because defendant was sentenced to state prison, and not placed on probation, section 1203.097 is inapplicable. Thus, the trial court erred in imposing a $400 domestic violence fine, and the fine is reversed.
The trial court also credited defendant with 187 days of actual custody credits and 92 days of conduct credits. Section 2933.1, subdivision (a), states, "Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933." Because defendant was convicted in count 1 of kidnapping, a violent felony (§ 667.5, subd. (c)(14)), section 2933.1, subdivision (a), limits the amount of presentence conduct credits to 15 percent of the time actually served. Defendant served 187 actual days of presentence custody. Defendant, therefore, was only entitled to 28 days of conduct credits, and the abstract of judgment must be corrected to reflect this.
The trial court stated that the one-year sentence on count 4 was to run consecutive to the three-year sentence on count 1. The abstract of judgment, however, states that the sentence on count 4 was to run concurrent. Accordingly, the abstract of judgment must be corrected to reflect the trial court's oral pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is reversed as to the imposition of a $400 domestic violence fine. Defendant's judgment is modified to provide that he is entitled to a total of 215 days of presentence credit consisting of 187 days of actual custody credits and 28 days of conduct credits. The abstract of judgment shall be corrected to reflect that the one-year sentence on count 4 is to run consecutive to the three-year sentence on count 1. The matter is remanded for the trial court to amend the abstract of judgment accordingly. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.