Opinion
2d Crim. No. B292492
02-25-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID GARY SALMAN, Defendant and Appellant.
Myra Sun, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and Allison H. Chung, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VA147327)
(Los Angeles County)
David Gary Salman appeals a judgment following his conviction of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), a felony, and vandalism over $400 (§ 594, subd. (a)), a felony. Salman fell within the purview of the three strikes law and the trial court sentenced him to an aggregate 11-year prison term. That sentence included a mandatory five-year sentence enhancement for a prior serious felony conviction. That enhancement was imposed prior to the effective date of Senate Bill No. 1393. (Stats. 2018, ch. 1013, § 2, p. 6676, eff. Jan. 1, 2019.)
All statutory references are to the Penal Code. --------
We conclude, among other things, that: 1) Salman has not shown he is entitled to a reversal because of the People's late disclosure of an audio tape; 2) the trial court properly admitted witness identification testimony; 3) Salman's statements to police were properly admitted into evidence; 4) a prosecutor's remark in closing argument was not prosecutorial misconduct; 5) the trial court did not err in the way it conducted a victim restitution hearing; 6) a remand for resentencing is required because of Senate Bill No. 1393; and 7) on remand, the trial court shall offer Salman the opportunity to have an ability-to-pay hearing for certain fees and fines. We remand with instructions. In all other respects, we affirm.
FACTS
In the afternoon of March 23, 2018, David Perez was driving his truck down a street in Downey. As he changed lanes, he saw "a speeding car come right behind [him]." Salman, who drove that speeding Buick, made a hand gesture. He "flipped [Perez] off" using his middle finger. Perez made the same hand gesture directed to Salman.
Salman drove next to Perez's truck and threw a 32-ounce soda container into Perez's "truck cockpit." The liquid spilled onto the dashboard, steering wheel, seats, mirror, and ceiling of Perez's truck. Salman "sped up" and drove away.
Perez followed Salman's vehicle to get his license plate number and he called 911. He provided the 911 operator with a description of the Buick and the license plate number.
Salman drove near a hotel and stopped. Perez drove his truck "right behind" the Buick and stopped. Salman got out of the Buick and "raised his hands . . . in a beckoning motion." He "wanted to engage in a fight" with Perez. Perez did not get out of his vehicle.
Perez drove away, and as he made a U-turn, Salman threw an object at Perez's truck which made a dent in that vehicle.
Salman got back in his Buick and drove away. Perez followed him. Salman stopped at the Northgate market parking lot. Perez drove his truck "right behind him." Perez testified Salman got out of the Buick and was "raising his hands inviting [Perez] to fight."
Perez backed up to get out of the parking lot and drove his truck down another street and stopped. Salman got out of his Buick and walked over to where Perez was parked. Salman went to the side window of Perez's truck with a "mallet" hammer in his hand. Salman swung the mallet hammer at Perez three or four times hitting Perez in his face and the back of his arm and forearm. He broke Perez's glasses. As Perez drove away, Salman swung the mallet hammer, breaking the rearview mirror on Perez's truck and denting the side of that vehicle. Perez remained on the phone with the 911 operator, telling the operator his location.
Sheriff Deputy Sean Leake arrived and interviewed Perez. Perez described the assailant as a Hispanic adult, 30 to 40 years of age, with a bald head and tattoos on his arms. Using the information Perez provided regarding the Buick and the license plate, Leake was able to verify that Salman was the registered owner of that car.
A few days later a police officer stopped Salman's vehicle. Salman was driving. Salman was taken into custody at the Hollywood police station. Sheriff Deputy Michael Luna went to that station. He took a photograph of that vehicle. In the trunk of Salman's car, Luna saw a "rubber mallet." Luna booked the mallet into evidence. It was not the same mallet that Perez had described that was used in the attack, but Perez said it was similar in size to that "hand tool" object that Salman used to strike him. Luna testified Salman matched the description Perez gave of the suspect. Salman was in the back seat of Luna's patrol car. Luna testified that while there Salman made the "spontaneous" statements that "people shouldn't be following people home especially after you told them twice" and "so you're just gonna believe him and put a case on me."
The sheriff's department provided Perez with a six-pack photo lineup. Salman's photo was one of the six photos. Perez identified a man other than Salman as the perpetrator.
At the preliminary hearing, Perez testified Salman was the person who attacked him.
In a pretrial motion Salman requested dismissal of the case because the People did not produce an audio tape of the photo lineup prior to the preliminary hearing. He filed a second motion to exclude all eyewitness identification evidence at trial. The trial court denied these motions.
Salman moved to exclude the statements he made in the police car to Luna. He claimed they were the product of an in-custodial police interrogation in violation of Miranda v. Arizona (1966) 384 U.S. 43 (Miranda). The trial court denied this motion. It found "[Salman] was Mirandized, he invoked, and the evidence is that he made a statement not in response to interrogation."
DISCUSSION
The Late Disclosure of an Audio Tape of the Photo Lineup
Salman contends the trial court should have granted his motions to dismiss this case because the People did not produce an audio tape of Perez's photo lineup identification until after the preliminary hearing. He claims the tape was material and the failure to disclose it before the preliminary hearing was prejudicial because it impeded his ability to effectively cross-examine Perez about Perez's ability to identify him. Salman argues this violated his right to due process.
"[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady v. Maryland (1963) 373 U.S. 83, 87.) To obtain relief under Brady, a defendant must show the prosecution's delayed disclosure of evidence was material. Materiality means a " 'reasonable probability of a different result.' " (Banks v. Dretke (2004) 540 U.S. 668, 699.) The prosecution's error is not prejudicial where there is no showing that the outcome would have been different had there been a timely disclosure. (Id. at pp. 698-699.)
Salman contends that with the audio tape evidence he could have prevented the People from meeting their burden at the preliminary hearing. He claims he would have proved the information should have been set aside because he was misidentified by Perez.
" 'An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' " (People v. Chapple (2006) 138 Cal.App.4th 540, 545.) " '[T]he showing required at a preliminary hearing is exceedingly low.' " (Ibid.)
The procedural history of the witness identification evidence and the additional corroborating evidence confirming identity undermines Salman's claims.
The Photo Identification
Sheriff Detective Damien Concha showed Perez a photo lineup of the pictures of six individuals. Salman's photograph was in the No. 6 position in that six pack. Perez did not identify Salman. He selected the picture of the person in the No. 1 position.
The Preliminary Hearing
At the preliminary hearing, Perez testified Salman was the person who attacked him. He admitted that he did not identify Salman in the six-pack photo lineup. He was asked, "[H]ow sure are you that [Salman] is the individual who committed this crime?" Perez: "Pretty sure. Yes, I'm sure."
On cross-examination, Salman's counsel asked Perez whether he told the detective that he was "sure it was the person." Perez: "I told him that this is my best guess." Counsel: "That was your best guess?" Perez: "And that I was not sure." Counsel: "And you used those words - 'best guess'?" Perez: "Yes, as far as I can recall." Counsel: "And you used the words 'not sure' when you were speaking to the detective?" Perez: "Yes. Yes, uh-huh." Counsel: "And so when you were looking at those six photographs, you picked the person that you thought most resembled the person who assaulted you, correct?" Perez: "Correct."
The Audio Tape of the Photo Lineup
Before trial, but after the preliminary hearing, the People provided the defense an audio tape of the photo lineup.
In that recording Perez described to Detective Concha how he picked the individual in position No. 1. He said, "This guy looks familiar, right here. Um, he obviously had more beard. Definitely same kind of tone skin. Bald headed. Um, this is the closest one. And I'm kind of going by what I know it's definitely not . . . him, him, him, or him. But that's the closest one."
Salman's motions
Before trial Salman filed a non-statutory motion to dismiss, claiming he was denied due process "at the preliminary hearing" because the People did not produce the audio tape at that time. He claimed, "Had the defense been given the recording prior to the preliminary hearing, the defense could have impeached Mr. Perez based on testimony that ran contrary to the interview recording." Salman contended that with that evidence there would not be probable cause to hold him for trial.
The trial court denied the motion. It found the People should have more timely provided the audio tape to the defense. But "the crux of that information not turned over has to go to what happened at the six-pack [identification]. In the six-pack [identification], the witness pointed to somebody else, someone other than the defendant, and that's pretty significant, but that's information which the defense had. The defense had it at the preliminary hearing, they had it at the photo lineup, they were able to cross-examine . . . on that." The defense "had the basic information that the witness had either incorrectly or correctly identified somebody else as the perpetrator . . . ." The court found the delayed production of the audio tape did not "rise to a denial of a substantial right."
The defense moved to exclude "all eyewitness identification evidence" at trial. The trial court denied that motion. It found that apart from the eyewitness identification evidence, there was other evidence, including an incriminating statement Salman made to the police, that showed a "strong suspicion that the defendant committed the crime."
Salman contends the trial court erred by denying these motions. But the court noted that the defense was aware at the preliminary hearing that Perez had identified someone other than Salman, and this was the primary basis for impeachment of Perez's identification testimony. To impeach Perez, Salman's counsel told the jury, "In this case we had a six-pack. [Perez] picked somebody else." The trial court could reasonably find that any additional or collateral impeachment based on the difference between Perez's statements on the audio tape and at the preliminary hearing was a matter for the jury to consider in determining Perez's credibility. (People v. Elliott (2012) 53 Cal.4th 535, 585; In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.)
Perez's inability to identify Salman at the photo lineup did not require the trial court to exclude his in-court identification testimony. (People v. Arias (1996) 13 Cal.4th 92, 168; Lee v. Foster (7th Cir. 2014) 750 F.3d 687, 691; Johnson v. McCaughtry (7th Cir. 1996) 92 F.3d 585, 597; United States v. Causey (6th Cir. 1987) 834 F.2d 1277, 1286; United States v. Skipworth (10th Cir. 1983) 697 F.2d 281, 284; United States v. Toney (6th Cir. 1971) 440 F.2d 590, 591; United States v. Black (6th Cir. 1969) 412 F.2d 687, 689.) "[A]mission of an in-court identification is considered fair when the defendant is given the opportunity to cross-examine" the witness, and "the in-court identification is based on the personal observation of the defendant at the time of the alleged crime." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1162.)
Salman claims he was entitled to a dismissal. But he relies primarily on his view of the eyewitness identification evidence without consideration of why the other evidence in this case would support a probable cause finding. (People v. Carter (2005) 36 Cal.4th 1114, 1164, fn. 23 [error admitting eyewitness testimony is harmless where "other evidence . . . directly linked defendant" to the crimes].)
The People note that, even excluding Perez's eyewitness identification testimony, the remaining evidence showed both probable cause and strong evidence of Salman's guilt. We agree.
Salman matched the physical description of the suspect that Perez had provided to law enforcement. Perez was able to provide the sheriff's department with a description of the Buick used in the crime and the license plate number. Salman was the registered owner of that vehicle. Days later Salman was arrested driving that vehicle. A rubber mallet was in the trunk of Salman's car. It was similar in size to the object used in the attack on Perez. Perez told a sheriff's deputy that Salman wore a white T-shirt at the time of the attack. During a search of Salman's car, police found a white T-shirt. Salman told a sheriff deputy that "[p]eople shouldn't be following people home especially after you told them twice." As the People note, this remark showed Salman's "awareness of the facts underlying the crime, which supported the inference that he was the person who committed [it]." It was a highly incriminating admission. Salman has not shown grounds for reversal. (People v. Carter, supra, 36 Cal.4th at p. 1164, fn. 23.)
Unduly Suggestive Witness Identification Procedure
Salman claims he was identified in a witness identification procedure that was unreliable and a violation of due process.
"The defendant bears the burden of demonstrating the existence of an unreliable identification procedure." (People v. Cunningham (2001) 25 Cal.4th 926, 989.) "In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (Ibid.)
Salman notes that before the preliminary hearing a prosecutor told Perez that the person he identified in the photo lineup was not the person the police had arrested. He claims the prosecutor acted improperly; this impacted the outcome and tainted Perez's identification testimony at the preliminary hearing and trial.
The People respond that the prosecutor's statement was not unduly suggestive and it did not have the impact Salman asserts. They claim "the remark provided only information of which Perez would presumably become aware once he entered the courtroom for the preliminary hearing." (People v. Arias, supra, 13 Cal.4th at p. 167.) Moreover, there is evidence that it did not impact Perez's ability to identify Salman. At trial Perez testified the prosecutor's remark "did not affect" his identification and he "was able to hundred percent identify [Salman]."
But even "[w]hen an eyewitness has been subjected to undue suggestion, the factfinder must nonetheless be allowed to hear and evaluate his identification testimony unless the ' " 'totality of the circumstances' " ' suggests ' "a very substantial likelihood of irreparable misidentification." ' " (People v. Arias, supra, 13 Cal.4th at p. 168.) Here the totality of circumstances confirm the reliability of Perez's identification of Salman. Perez testified he "focused" on Salman's face and physical description for three minutes. He had several opportunities to see Salman during the commission of the crimes. Perez was 12 and one-half feet away from him when Salman "first stepped out of his vehicle to engage [him] in a fight." Perez saw Salman again in the "Northgate parking lot" when Salman "stepped out to engage in a fight." The third time he saw Salman he was two or three feet away when Salman assaulted him with a mallet. That attack lasted 20 to 30 seconds. Perez was sitting in his car and he focused on Salman's face.
Perez provided law enforcement a description of Salman as being a Hispanic adult, 30 to 40 years of age, with a bald head and tattoos on his arms. That description was consistent with Salman's physical appearance. The jury could reasonably find this and the other evidence the People presented corroborated Perez's in-court identification testimony. (In re Gustavo M., supra, 214 Cal.App.3d at p. 1497.)
Moreover, any alleged error in admitting the identification evidence was, as already shown, harmless. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Carter, supra, 36 Cal.4th at p. 1164, fn. 23.)
Exclusion of Salman's Statements in the Police Car
Salman contends the trial court erred in denying his motion to exclude statements he made to the police. We disagree.
Sheriff Deputy Luna testified that when Salman was in the police car, he said, "People shouldn't be following people home especially after you told them twice." Salman also said, "So you're just gonna believe him and put a case on me."
Salman's counsel moved to exclude these remarks claiming they were made as a result of a police interrogation.
The Miranda rule precludes "the evidentiary use of statements made pursuant to a custodial interrogation unless the suspect has knowingly and intelligently waived the rights to remain silent and to the presence and assistance of an attorney, the latter provided at state expense for indigent suspects." (People v. Roldan (2005) 35 Cal.4th 646, 735, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) " ' "Interrogation" consists of express questioning, or words or actions on the part of the police that "are reasonably likely to elicit an incriminating response from the suspect." ' " (Ibid.) "Just as well established, however, is that '[s]tatements volunteered when not in response to an interrogation are admissible against a defendant, even after an initial assertion of the right to remain silent.' " (Ibid.)
Luna testified that he gave Salman the standard Miranda advisement. Salman said he would not answer questions and he wanted to "speak with his attorney." Luna testified he "terminated the questioning" at this point. Salman asked Luna "what this was all about." Luna replied, "[S]omething that happened in Pico a few days ago." Luna and Salman waited in the patrol car for 30 to 45 minutes before a tow truck arrived. During that time they engaged in "small talk," which included what Salman was doing in Hollywood. Salman talked about his brother living in the area. Luna testified the challenged statements Salman sought to suppress were "spontaneous" remarks by Salman.
A critical factor is that Luna terminated the questioning after Salman's response to the Miranda warnings. (Rhode Island v. Innis (1980) 446 U.S. 291, 300 ["the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation"].) Luna answered Salman's question, engaged in "small talk," and then Salman made the "spontaneous" remarks in question. "[C]asual conversations or 'small talk' unrelated to the offense do not typically constitute a Miranda interrogation." (People v. Andreasen (2013) 214 Cal.App.4th 70, 87.) "The fact that information gathered from these routine questions or casual conversations turns out to be incriminating does not alone render the statements inadmissible." (Ibid.) "This principle excluding routine or casual communications from Miranda's coverage can apply even when a defendant has already received Miranda warnings and invoked his or her rights." (Ibid.)
Luna did not make any statements to Salman that were " ' "designed to elicit incriminatory admissions." ' " (People v. Andreasen, supra, 214 Cal.App.4th at p. 87.) Salman's spontaneous remarks were admissible. (People v. Roldan, supra, 35 Cal.4th at p. 735; United States v. Abdulla (7th Cir. 2002) 294 F.3d 830, 837.) "Any statement given freely and voluntarily without any compelling inferences is, of course, admissible in evidence." (Miranda v. Arizona, supra, 384 U.S. at p. 478.) Moreover, any error in admitting this evidence was harmless given the strength of the other evidence the People presented against Salman. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Carter, supra, 36 Cal.4th at p. 1164, fn. 23.)
Prosecutorial Misconduct
Salman contends the trial court erred by permitting the prosecutor in rebuttal argument to shift the burden to Salman "to present evidence in violation of due process."
During closing argument the prosecutor said, "There is no mistaken identity. . . . [B]ecause the evidence proved that the only person that drove that car . . . and got into a confrontation with Mr. Perez . . . was the defendant in this case. There was no other evidence presented at this trial that somebody else did the crime." (Italics added.)
Defense counsel objected that this was "prosecutorial misconduct, burden shifting, Griffin [v. California (1965) 380 U.S. 609, 615] error." The trial court overruled the objection. Salman claims it erred by not sustaining the objection.
The People claim the prosecutor was properly responding to claims defense counsel made in closing argument that the jury could draw inferences that Salman was mistakenly identified by Perez. We agree.
In closing argument Salman's counsel told the jury, "There's a mistaken identity in this case." He said, "Deputy Leake went to this house; right?" "He could have knocked on the door and found my client there. . . . If the car wasn't there, we probably wouldn't be sitting here right now. [H]e could have gone there, found somebody else there; right? Who may or may not fit the description and found the car there but not my client, and you'd have the same conclusion." Defense counsel said Perez was asked "to pick the perpetrator out of a group." He said, "In this case we had a six-pack. [Perez] picked somebody else."
The prosecutor's statement was in response to these claims. It was a comment on the evidence in the case. The statement the prosecutor made does not constitute prosecutorial misconduct or an effort to shift the burden of proof.
"[T]he Fifth Amendment[] forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin v. California, supra, 380 U.S. at p. 615.) "The prosecutor's argument cannot refer to the absence of evidence that only the defendant's testimony could provide." (People v. Brady (2010) 50 Cal.4th 547, 565-566.) "The rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses." (Id. at p. 566.)
Here the prosecutor did not comment on Salman's decision not to testify. She did not say Salman "bore the burden of proof" or "was required to produce evidence." (People v. Weaver (2012) 53 Cal.4th 1056, 1077.) She "permissibly commented on the state of the evidence." (Ibid.) No reasonable juror would believe that the prosecutor's comment shifted the burden of proof to the defendant. The court instructed the jury that the People must prove the "defendant guilty beyond a reasonable doubt." The prosecutor told jurors, "I have the burden of proof. I accept that burden of proof. It's always on me." (Italics added.)
Victim Restitution
Salman contends the trial court erred by entering a $2,058 victim restitution order and making an incorrect finding that he waived his presence at the restitution hearing.
The People claim Salman waived his appearance at the hearing and the defense made no showing that the amount of restitution awarded was incorrect. We agree.
Salman did not attend the restitution hearing. His counsel was present. The court clerk informed the trial court that "Deputy Davis in lockup" learned from Deputy Ewing that Salman is "refusing to come to court." The court said, "[Because] the deputies have reported that [Salman] is refusing to be here, the court will deem that as his waiver of his presence."
Salman contends the trial court lacked adequate information to make this finding. But "a trial judge may rely on reliable information, such as statements from jail or court personnel, to determine whether a defendant has waived the right to presence." (People v. Gutierrez (2003) 29 Cal.4th 1196, 1205.) Salman has not shown the court erred in finding a waiver. (Ibid.)
Moreover, Salman has not shown prejudice. During the restitution hearing, the prosecutor provided Salman's counsel with documentary evidence of the amount sought as restitution. After receiving this information, Salman's counsel stipulated to an award of $2,058 as victim restitution. The court was entitled to rely on the stipulation in making its order. Salman has not shown that his counsel lacked authority to make the stipulation. (People v. Cleveland (2004) 32 Cal.4th 704, 742; People v. Freeman (1994) 8 Cal.4th 450, 485; In re Horton (1991) 54 Cal.3d 82, 95.) Nor has he shown that the documentary evidence his counsel received did not support the amount awarded as restitution.
Senate Bill No. 1393
Salman contends he is entitled to resentencing because he received a mandatory five-year consecutive sentencing enhancement for a 2015 prior serious felony conviction. The People agree that he must be resentenced because of Senate Bill No. 1393.
At the time of sentencing, the trial court was required to impose this mandatory enhancement under former section 667. (People v. Zamora (2019) 35 Cal.App.5th 200, 208.) But Senate Bill No. 1393 changed the law to allow trial courts to exercise their discretion "as to whether to dismiss or strike" this felony enhancement "for sentencing purposes." (Ibid.) Senate Bill No. 1393 is retroactive for pending cases, and this case must be remanded to allow the trial court to exercise its discretion in light of the new law. (Ibid.)
Dueñas
Salman notes the trial court imposed a $300 restitution fine, a $300 parole revocation fine, a $40 court security fee per count, and a $30 criminal conviction fee per count. He contends the imposition of these "mandatory assessments" without "consideration of his ability to pay violated due process." (People v. Dueñas (2019) 30 Cal.App.5th 1157.)
The People respond that because this case must be remanded "for a new sentencing hearing," this case also should be remanded to allow Salman to request a hearing to show his inability to pay these fines and fees. Because the parties essentially agree on this issue, we consequently remand for Salman to have the opportunity for an ability-to-pay hearing. (People v. Dueñas, supra, 30 Cal.App.5th at pp. 1172-1173; People v. Castellano (2019) 33 Cal.App.5th 485, 490-491.)
DISPOSITION
The case is remanded: 1) for resentencing to allow the trial court to exercise its discretion under Senate Bill No. 1393 (People v. Zamora, supra, 35 Cal.App.5th at pp. 208-209); and 2) the order imposing the court security fee, the criminal conviction fee, and the parole revocation fine is reversed, and the execution of the restitution fine (§ 1202.4) is stayed to allow Salman the opportunity to have an ability-to-pay hearing on remand. (People v. Dueñas, supra, 30 Cal.App.5th at pp. 1172-1173). In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J. I concur:
YEGAN, J.
TANGEMAN, J.
Raul Anthony Sahagun, Judge
Superior Court County of Los Angeles
Myra Sun, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.