The PEOPLE, Plaintiff and Respondent, v. Todd James MAUPIN, Defendant and Appellant.
This is the second appeal arising from appellant's February 1995 conviction and sentencing for first degree burglary. In the first appeal, we affirmed the conviction but remanded for resentencing to allow the trial court to consider exercising discretion in striking appellant's prior felony conviction which had been charged and proved both as a prior enhancing strike under the “Three Strikes” law (Pen.Code,1 § 667, subd. (d)), and as a serious felony prior conviction enhancement pursuant to section 667, subdivision (a).
On remand, the trial court declined to exercise its discretion and strike the prior conviction, and appellant's original aggregate sentence of 13 years in state prison was reaffirmed. At his resentencing, appellant also moved unsuccessfully to strike his prior (1986) burglary conviction on the grounds that his plea of guilty was not knowingly and voluntarily entered.
Appellant now appeals, contending it was error as a matter of law to enhance his sentence based on his 1986 burglary conviction because of Boykin/Tahl error committed at the time his plea was taken. Respondent contends appellant is barred by law from collaterally attacking his prior conviction.
We conclude that appellant is not barred from attacking his prior conviction on the basis of alleged Boykin/Tahl error. However, considering the totality of circumstances, we determine appellant's plea was knowingly and voluntarily made. Thus, we affirm his sentence.
On February 16, 1995, a jury found appellant guilty of first degree burglary. (§ 459.) In the bifurcated nonjury portion of the trial, the trial court found true the sentencing enhancement allegation that appellant had suffered a prior conviction for residential burglary in 1986 which qualified both as a serious felony under section 667, subdivision (a), and for sentence enhancement purposes under section 667, subdivision (d). The court accordingly sentenced appellant to 13 years in state prison: 4 years for the current offense, doubled to 8 years based on the prior qualifying strike, plus a 5-year enhancement for the same prior “serious” felony conviction.
Appellant appealed (People v. Maupin (Dec. 19, 1996)A071099)[nonpub. opn.], alleging sentencing error. He contended, among other issues, that the trial court manifested the belief that it lacked discretion to strike his prior conviction for purposes of sentencing under the Three Strikes law (§ 667, subds. (b)-(i)) and that the case should be remanded for resentencing in conformance with People v. Romero (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628. This court agreed with appellant and remanded for resentencing to allow the lower court to consider whether it wished to exercise discretion to strike the prior. Otherwise, we affirmed the current conviction and use of the prior conviction both to double his base term under section 667, subdivisions (d) and (e), and to impose a 5-year enhancement under section 667, subdivision (a).
On remand, the trial court declined to exercise its discretion to strike appellant's prior conviction and reimposed a sentence totaling 13 years. At his resentencing, appellant also moved to require the court to strike his 1986 burglary conviction on the ground that his earlier plea of guilty was not knowingly and voluntarily entered because of Boykin/Tahl error.
This timely appeal followed.
discussionA. Propriety of Collateral Attack on Prior Conviction Based on a Claim of Boykin-Tahl Error
The United States Supreme Court in Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 held that the constitutional validity of a guilty plea depends upon the trial court's proper admonishment and receipt of defendant's tripartite waiver of the rights to a jury trial, confrontation, and self-incrimination. Shortly thereafter, the California Supreme Court interpreted Boykin as requiring the specific and express enumeration of these three rights as part of all plea acceptances. (In re Tahl (1969) 1 Cal.3d 122, 132, 81 Cal.Rptr. 577, 460 P.2d 449.) Based on these principles, appellant challenges the constitutional validity of his 1986 conviction, contending that the trial court failed to confirm his waiver of the right to confrontation when he pleaded guilty to the 1985 burglary charge. Appellant maintains that the alleged Boykin/Tahl defect renders his earlier conviction constitutionally invalid such that it cannot be used to enhance the sentence imposed relating to his current conviction.
Respondent asserts that appellant is barred from collaterally attacking his nearly 12-year-old guilty plea and conviction, citing Garcia v. Superior Court (1997) 14 Cal.4th 953, 59 Cal.Rptr.2d 858, 928 P.2d 572 (Garcia ). Appellant replies that People v. Sumstine (1984) 36 Cal.3d 909, 206 Cal.Rptr. 707, 687 P.2d 904 (Sumstine ) and People v. Soto (1996) 46 Cal.App.4th 1596, 54 Cal.Rptr.2d 593 (Soto ) govern the overall propriety of collateral attacks on prior convictions on the basis of alleged Boykin/ Tahl error. In Sumstine, the defendant was convicted of committing a lewd and lascivious act on a minor and, at the sentencing hearing, moved to strike a prior conviction for the same offense, alleging that the record as to that prior offense was silent on his Boykin/Tahl rights. The trial court denied the motion on the ground that a motion to strike a prior was limited to situations involving denial of the right to counsel. The court then used that prior conviction to enhance the current offense. On appeal, the Supreme Court affirmed the conviction but held that motions to strike prior convictions are not limited to those motions alleging denial of the right to counsel. The court stated that a defendant “may move to strike a prior conviction on Boykin/Tahl grounds” and set forth the procedure for undertaking a Boykin/Tahl challenge. (Sumstine, supra, 36 Cal.3d at pp. 914, 919, 922, fn. 6, 206 Cal.Rptr. 707, 687 P.2d 904.)
More recently, in Soto, the Second District Court of Appeal decided that a “defendant in a noncapital case may move to strike a prior conviction on Boykin/Tahl grounds” notwithstanding the decision in Custis v. United States (1994) 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (Custis ) abolishing the remedy in the federal courts. (Soto, supra, 46 Cal.App.4th at p. 1599, 54 Cal.Rptr.2d 593.) In Soto, the defendant was charged with possession of cocaine and had allegedly suffered a previous robbery conviction. Defendant moved to strike the prior conviction alleging an invalid waiver of his right to a jury trial due to the confusion caused by the trial court's inadvertent mischaracterization of a jury trial as a proceeding in which “lawyers” listen to the evidence and decide guilt or innocence. The appellate court concluded that the trial court had properly entertained the motion to strike the prior, although defendant had failed to carry his burden of proof that his plea was constitutionally invalid.
Further, Soto addressed the propriety of collateral attacks on prior convictions on the basis of Boykin/Tahl error in light of Custis in which the United States Supreme Court held that a defendant in a federal sentencing proceeding has no right to collaterally attack the validity of prior state convictions used to enhance his sentence. (Custis, supra, 511 U.S. at p. 497, 114 S.Ct. at p. 1739.) In Custis, a jury convicted the defendant of two federal crimes, and the government sought to rely on two prior state convictions to enhance his sentence. The defendant challenged the use of his state convictions for enhancement purposes alleging ineffective assistance of counsel during the state prosecutions. While denying defendant the right to use a federal sentencing forum to gain review of state convictions, the court stated unequivocally that defendant could attack his state convictions in the states which rendered them or via federal habeas corpus review. (Ibid.) The Soto court explained Custis further, quoting Justice Ginsburg from a later case: “ ‘Custis presented a forum question. The issue was where, not whether, the defendant could attack a prior conviction for constitutional infirmity.’․” (Soto, supra, 46 Cal.App.4th at p. 1603, 54 Cal.Rptr.2d 593, quoting Nichols v. United States (1994) 511 U.S. 738, 765, 114 S.Ct. 1921, 1937, 128 L.Ed.2d 745 (dis. opn. of Ginsburg, J.).)
Respondent argues that our Supreme Court's recent decision in Garcia, supra, 14 Cal.4th 953, 59 Cal.Rptr.2d 858, 928 P.2d 572 applies to bar appellant's collateral attack of a prior conviction on Boykin/Tahl grounds. Garcia held that “in a current prosecution for a noncapital offense, the interest of judicial efficiency does not justify a rule of criminal procedure requiring that trial courts entertain motions to strike based upon the constitutional ground of ineffective assistance of counsel.” (Id. at p. 966, 59 Cal.Rptr.2d 858, 928 P.2d 572.) Essentially, respondent contends Garcia implicitly overruled Sumstine and Soto. In answer to appellant's claim that Garcia is limited to its facts, respondent argues that the strong policy concerns triggered by collateral challenges based on ineffective assistance of counsel claims are equally implicated by Boykin/ Tahl challenges.
In Garcia, defendant was found guilty of possession of heroin. Having already suffered two strikes for prior serious felony convictions pursuant to the Three Strikes law (§ 667, subds. (b)-(i)), defendant moved to strike one of them on grounds that he received ineffective assistance of counsel with respect to that prior conviction. The trial court denied the motion, and the Court of Appeal issued a writ of mandate instructing the trial court to vacate the order denying the motion and to determine whether the matter should be set for an evidentiary hearing. The Supreme Court reversed the Court of Appeal and held that the trial court properly refused to entertain defendant's collateral challenge to a prior conviction on ineffective assistance of counsel grounds. (Garcia, supra, 14 Cal.4th at pp. 958-959, 59 Cal.Rptr.2d 858, 928 P.2d 572.)
The Supreme Court expressed concern for the potential disruption to the administration of criminal justice if defendants were afforded the right to attack collaterally prior convictions based upon claims of ineffective assistance of counsel. (Garcia, supra, 14 Cal.4th at p. 966, 59 Cal.Rptr.2d 858, 928 P.2d 572, fn. omitted.) Such claims present unique hardships to reviewing courts including the need to review “the entirety of the record of the earlier criminal proceedings, as well as matters outside the record” related to “counsel's actions, omissions, and strategic decisions,” all of which signaled unacceptable delay and interruption. (Id. at pp. 956, 965, 59 Cal.Rptr.2d 858, 928 P.2d 572.) To forestall the “intolerable burden” which would otherwise befall trial courts, the court discussed three policy reasons justifying a refusal to allow belated attacks on prior convictions: avoidance of delay, ease of administration, and the promotion of the finality of judgments. (Id. at pp. 956, 961-962, 59 Cal.Rptr.2d 858, 928 P.2d 572.)
The court noted the two areas of concern, avoidance of unnecessary delay and ease of administration, are present in virtually all ineffective assistance of counsel claims. Such claims “necessitate a factual investigation with regard to counsel's actions, omissions, and strategic decisions, requiring the parties and the court to reconstruct events possibly remote in time, and to scour potentially voluminous records, substantially delaying the proceedings related to the current offense.” (Garcia, supra, 14 Cal.4th at p. 965, 59 Cal.Rptr.2d 858, 928 P.2d 572.)
Second, the Garcia court addressed the need for ease of judicial administration by prohibiting only those collateral attacks based on claims that would not be immediately apparent or that could not be resolved from the face of the record. To illustrate the type of collateral challenge that would not negatively impact judicial processes, the court referred to Custis, which allowed challenges based on a claim of Gideon error.2 Examinations of judgment rolls and/or minute orders would handily dispose of claims raising Gideon challenges. (Garcia, supra, 14 Cal.4th at p. 962, 59 Cal.Rptr.2d 858, 928 P.2d 572.)
Similarly, only a review of the trial record is normally necessary to resolve claims of alleged Boykin/Tahl error. This reasoning was acknowledged in Sumstine as well. There, the court rejected the argument that allowing Boykin/Tahl challenges on motions to strike would be unnecessarily time-consuming, a contention made by respondent here. Noting the Tahl requirement that the three rights mentioned in Boykin be “specifically and expressly enumerated” on the face of the record, the Supreme Court responded to the undue time-consumption argument dismissively: “If a proper record existed, Boykin/Tahl claims could as easily be determined as right to counsel claims.” (Sumstine, supra, 36 Cal.3d at p. 919, fn. 6, 206 Cal.Rptr. 707, 687 P.2d 904; In re Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.)
Indeed, the instant Boykin/Tahl challenge does not involve a detailed review of voluminous material. As presaged in Sumstine, the transcript of appellant's prior plea was part of the record in the trial court, as it is on appeal. A simple reading of this two-page transcript enabled the trial judge to verify easily whether appellant was properly admonished of his rights and the required waivers obtained. This task is qualitatively and quantitatively different from the more burdensome chore of reviewing ineffective assistance of counsel claims. Therefore, this prong of the Garcia rationale does not apply to bar challenges to prior convictions on Boykin/Tahl grounds.
Nevertheless, respondent argues that the Garcia opinion did encompass claims attacking the voluntariness of guilty pleas when the court stated: “But determination of claims of ineffective assistance of counsel, and failure to assure that a guilty plea was voluntary, would require sentencing courts to rummage through frequently nonexistent or difficult to obtain state court transcripts or records that may date from another era, ․” (Garcia, supra, 14 Cal.4th at p. 962, 59 Cal.Rptr.2d 858, 928 P.2d 572, italics added.)
While respondent correctly reasons that Boykin/Tahl issues fall under the general rubric of voluntariness issues, plea voluntariness may not be limited to Boykin/Tahl issues. For example, contentions that a defendant was misled by counsel concerning the future effect of a guilty plea, sentencing exposure if the plea were rejected, or even alleged miscommunications concerning the likelihood of prevailing at trial are all matters which might go to the voluntariness of the plea, but which all stem from ineffective assistance of counsel claims.3 While these attacks on voluntariness may necessitate a constitutionally unnecessary and intolerably detailed inquiry, Boykin/Tahl challenges do not. Alleged Boykin/ Tahl errors should appear plainly on the face of the record. Any examination will be brief with no appreciable delay.
Moreover, implying an inherent similarity between the investigation of claims of ineffective assistance of counsel and the voluntariness of guilty pleas ignores the very type of collateral challenge that the Garcia court implicitly approved: one that can be accomplished with relative ease and dispatch from the face of the record. We are confident the high court's reference to complaints of plea voluntariness was intended in this context, and not as to claims of Boykin/Tahl error. Our view on this point is reassured by the fact that in Garcia, the court addressed Sumstine but only to distinguish it by noting that the Sumstine court had no occasion to address the propriety of motions to strike based on a claim of ineffective assistance of counsel. Had the Garcia court intended to prohibit Boykin/ Tahl forms of plea voluntariness challenges, it is likely the court would have overruled, disapproved, or otherwise criticized the Sumstine and Soto holdings as it overruled or disapproved three other cases found to be inconsistent with its opinion. (Garcia, supra, 14 Cal.4th at p. 966, fn. 6, 59 Cal.Rptr.2d 858, 928 P.2d 572.)
We are mindful that Garcia also addressed the need to promote the finality of judgments when it quoted Custis that “ ‘the concern with finality served by the limitation on collateral attack has special force’ ” where guilty pleas are concerned. (Garcia, supra, 14 Cal.4th at p. 962, 59 Cal.Rptr.2d 858, 928 P.2d 572, quoting Custis, supra, 511 U.S. at p. 497, 114 S.Ct. at p. 1739.) Yet, concerns for unnecessary delay and complication, not finality, constitute the main focus of the Garcia opinion: “ ‘The interest in promoting the finality of judgments provides additional support for our constitutional conclusion.’ ” (Garcia, supra, 14 Cal.4th at p. 962, 59 Cal.Rptr.2d 858, 928 P.2d 572.) Had the court intended to bar all forms of collateral attack because of an overriding concern for promoting the finality of judgments, that conclusion would have been explicitly stated. Rather, the decision in Garcia is carefully crafted to meet the unique characteristics of stale ineffective assistance of counsel claims and the formidable work needed to decide them.
Since the close of briefing in the case before us, the Third District Court of Appeal decided People v. Rizo (1998) 61 Cal.App.4th 573, 71 Cal.Rptr.2d 649 (Rizo ), in which the defendant appealed from a denial of a request for an evidentiary hearing to contest the voluntariness of his guilty plea to an enhancing prior felony. The Court of Appeal affirmed the trial court concluding that Garcia “implicitly overruled” Sumstine, and all motions to attack collaterally noncapital prior convictions were disapproved by the reasoning in Garcia. (Id. at p. 579, 71 Cal.Rptr.2d 649.)
We agree only with that portion of the opinion in which the appellate court concludes that a motion to hold an evidentiary hearing to contest the voluntariness of a prior guilty plea was properly denied. Apparently, beyond simple reliance on the transcript relating to the prior plea, matters affecting voluntariness extrinsic to the taking of the actual plea were in issue. Under such circumstances, we agree that the policies enunciated in Garcia apply to bar defendant's claim.
Obviously, from our discussion above, we disagree with the Third District's comment that the same policies furthering the administration of law expressed in Garcia apply to motions raising Boykin/Tahl error and claims grounded on ineffective assistance of counsel equally. Nor do we agree that “[i]ssues relating to the voluntariness of the plea will almost always be intertwined with issues relating to effectiveness of counsel.” (Rizo, supra, 61 Cal.App.4th at p. 579, 71 Cal.Rptr.2d 649.) We have already distinguished voluntariness of plea issues framed by Boykin/Tahl from those suggesting ineffectiveness of counsel. Given the mandate that constitutionally required admonishments be documented in the record, claims of Boykin/Tahl error, such as that involved this case, will rarely require the type of evidentiary review requested in Rizo or the burdensome review envisioned by Garcia.
In light of the foregoing, we conclude that Sumstine and Soto are not implicitly overruled by Garcia but rather, when read together with Garcia, compel us to state that a defendant may use a motion to strike to collaterally attack the constitutional validity of a prior conviction based on Boykin/Tahl error.
B. Timeliness of Appellant's Motion to Strike Prior Conviction
Respondent alternatively raises a timeliness issue, contending that based on the policy of promoting the finality of judgments, the theories of waiver and estoppel should operate to bar this challenge. Essentially, respondent argues that appellant's failure to challenge the validity of his 1986 conviction at any point during the last 11 years precludes this delayed collateral attack. In support of this contention, respondent cites People v. Coffey (1967) 67 Cal.2d 204, 215, 60 Cal.Rptr. 457, 430 P.2d 15 in which the court stated that “it is clearly in the interest of efficient judicial administration that attacks upon the constitutional basis of prior convictions be disposed of at the earliest possible opportunity, ․” But in taking this language out of context, respondent overlooks that despite the concern expressed by the Coffey court, the Supreme Court nevertheless upheld the defendant's challenge to a 15-year-old prior conviction. Later, the Sumstine court referenced Coffey, and dismissed a similar timeliness issue raised in response to a motion to strike for alleged Boykin/Tahl error, reasoning that because the “purpose of a motion to strike is to challenge only the present effect of the prior conviction” and “[a]s the state is the party proposing to assert the effect of the prior conviction at the current trial, the state should also be prepared to face challenges to it.” (Sumstine, supra, 36 Cal.3d at p. 921, 206 Cal.Rptr. 707, 687 P.2d 904, fn. omitted.) As such, the principles of waiver and estoppel do not bar appellant's attempts to question the validity of his prior conviction in this appeal.
C. Voluntariness of Appellant's Prior Guilty Plea
We turn next to appellant's contention that the trial judge's failure to secure his express waiver of his right to confront the witnesses against him rendered the first conviction by guilty plea constitutionally invalid. At the time of appellant's plea to the 1985 burglary charge, the following colloquy between the trial court and appellant took place: 4
“[THE COURT]: Each of you has constitutional rights in this matter. You each have a constitutional right to a jury trial. Do you understand that right?
“[THE COURT]: Do each of you give up that right?
“[THE COURT]: Counsel join?
“[DEFENSE COUNSEL MIKACICH]: Join.
“[THE COURT]: You each have the right to see and hear and, through your attorney, to question the witnesses against you. [¶] Mr. Maupin, do you understand that right?
“[THE COURT]: Do you understand that right?
“[THE COURT]: You each [have] the right to remain silent and not incriminate yourself. Do you each understand that right? [¶] Mr. Maupin?
“[THE COURT]: And do you each give up that right?
“[THE COURT]: All right. You each have the right to present a defense and to testify in your own behalf and to present evidence and witnesses and to use the Court's subpoena power to bring evidence and witnesses before the Court for your defense. Do you each understand that right?
“[THE COURT]: And do you each give up that right?
Without question, the above proceeding reveals that in voir diring appellant about his understanding of his right to confront and question witnesses, the court mistakenly failed to follow up appellant's response and ask him if he understood he was relinquishing that right in pleading guilty.
As noted, in order for a guilty plea to be constitutionally valid, the record must evidence the defendant's awareness and waiver of the right to a jury trial, the privilege against self-incrimination, and the right of confrontation. (Boykin v. Alabama, supra, 395 U.S. at pp. 242-243, 89 S.Ct. at p. 1712; In re Tahl, supra, 1 Cal.3d at p. 132, 81 Cal.Rptr. 577, 460 P.2d 449.) Shortly after Boykin was decided, the California Supreme Court interpreted Boykin strictly to require that the three rights “must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea․ [¶][M]ere inference is no longer sufficient, ․ ” (Ibid.) Reversal regardless of prejudice became the rule in the absence of express admonitions and waivers. (People v. Howard (1992) 1 Cal.4th 1132, 1178, 5 Cal.Rptr.2d 268, 824 P.2d 1315 (Howard ).)
However, in the years since the Tahl decision, numerous federal courts have expressly rejected California's strict interpretation of Boykin. (Howard, supra, 1 Cal.4th at p. 1178, fn. 18, 5 Cal.Rptr.2d 268, 824 P.2d 1315.) In 1992, the California Supreme Court in Howard reexamined its prior stance that Boykin/Tahl error was reversible per se. After reviewing the development of federal law since Tahl, the court explicitly repudiated its former position requiring reversal for demonstrated Boykin/ Tahl error, in favor of a less-stringent federal test upholding guilty pleas if the record demonstrates that “the plea was voluntary and intelligent under the totality of the circumstances. [Citations.]” (Id. at p. 1178, 5 Cal.Rptr.2d 268, 824 P.2d 1315.). While emphasizing that “explicit admonitions and waivers are still required in this state,” the Howard court embraced the flexibility of the federal test which attempts to put substance over form in the procedure for accepting guilty pleas. (Id. at p. 1179, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)
In Howard, the defendant was advised of his rights to a jury trial and confrontation, but the trial court failed to address the privilege against self-incrimination completely. In holding the admission of the prior to be voluntary and intelligent, the court noted the active representation of counsel, defendant's concurrent preparation for trial on charges to which he had pled not guilty, and the strong factual basis for the plea. All of these factors created a situation indicating an informed plea. Important to our analysis is the Howard court's emphasis on the logical relationship between the defective admonishment or waiver and the plea entered in determining its constitutionality. After acknowledging the trial court's technical failure to admonish the defendant of his privilege against self-incrimination, the court nevertheless concluded that a “ ‘plea of guilty is the most complete form of self-incrimination. By the plea, the defendant admits that he is guilty of the offense charged.’ ” (Howard, supra, 1 Cal.4th at p. 1180, 5 Cal.Rptr.2d 268, 824 P.2d 1315, quoting United States v. Sherman (9th Cir.1973) 474 F.2d 303, 305-306.) In short, the court reasoned that defendant's guilty plea by its very nature waived the right against self-incrimination and excused the court's technical error given the totality of the circumstances.
By parity of reasoning, we conclude that appellant's unchallenged waiver of his right to a jury trial necessarily waived the right to confrontation, an implicit component of the right to a jury trial. The record reveals that immediately after appellant waived jury trial, he was advised of and admitted understanding his right of confrontation. This right manifestly encompassed the proceeding appellant had just waived. Furthermore, upon being so advised, appellant did not then retract his waiver of the jury trial but proceeded to acknowledge and waive his other constitutional rights. The nature of appellant's willing waiver of his right to a jury trial given his admitted knowledge of his right to confront and question his accusers created a voluntary, knowing, and intelligent waiver of the right of confrontation. Overall, the totality of the circumstances including the active representation of his counsel at the admission of the prior, his admission of the factual basis of his plea, and the methodical and clear colloquy between the court and appellant reflects the constitutional validity of appellant's guilty plea.
The judgment of the trial court is affirmed.
FN1. All undesignated statutory references are to the Penal Code.. FN1. All undesignated statutory references are to the Penal Code.
2. Gideon error results from a complete denial of the fundamental right to counsel. (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.)
3. In Custis, defendant contended that prior to his plea of guilty to the 1985 prior burglary charge, counsel failed to advise him of the defense of voluntary intoxication, and that had he been so advised, he would not have pleaded guilty. (511 U.S. at p. 488, 114 S.Ct. at p. 1734.)
4. Responses by appellant's codefendant have been omitted.
RUVOLO, Associate Justice.
KLINE, P.J., and LAMBDEN, J., concur.