PEOPLE of the State of California, Plaintiff and Respondent, v. Enrique Chavez CEJA, Defendant and Appellant.
Enrique Chavez Ceja appeals his conviction by jury trial of first degree murder. (Pen.Code, § 187.) 1 Allegations of firearm use (§§ 12022.5, 1203.06, subd. (a)(1)) and infliction of great bodily injury (§ 1203.075) were found true. He contends the trial court erred in instructing the jury on first degree murder by means of lying in wait. We affirm in part, and reverse in part.
On September 7, 1988, appellant shot and killed Diana Hernandez (Diana) in the front yard of her brother's home. During the summer of 1988, Diana and appellant were living together with their infant son, Edwin. Their relationship was marked by appellant's extreme jealousy, frequent (and often physical) quarrels, and episodic separations. Approximately 10 days prior to her death Diana left appellant and moved with Edwin into the home of her brother, Hermenegildo, and his wife, Maria Ortega (Ortega), saying she was angry with appellant and did not want to continue to live with him. About four days before the shooting, Lupe Roque (Roque), who also lived at Hermenegildo's house, heard appellant talking to Diana through a window. Appellant told Diana to return everything he had given her, including her jewelry and clothes. Diana removed her shoes and threw them and her clothes out the window.
Two or three days prior to the shooting, Diana, Hermenegildo, Ortega, Edwin, and Diana's niece, Patricia, drove to a laundromat. As they were driving they noticed appellant following them in his car, and when they arrived at the laundromat appellant attempted to speak with Diana, but she refused. She did, however, let him play with Edwin outside the laundromat, and appellant appeared happy as he did so. He then left to buy a pizza, and thereafter appeared at Hermenegildo's house with a pizza and spoke with Diana.
Later that evening Hermenegildo saw appellant, in an intoxicated condition, at a bar. Appellant told him he loved Diana very much and could not understand why she did not want to live with him. He gave Hermenegildo a gold chain to give to Diana, but when Hermenegildo gave Diana the chain she told him to return it to appellant. On the night before the shooting Hermenegildo returned the chain to appellant, and appellant said he would kill himself if Diana did not return to live with him.
At about 10:00 a.m. on the day of the shooting, appellant's father's pickup truck was seen parked next to Hermenegildo's house. Sometime between noon and 12:30 p.m., Department of Social Services worker Amada Bruce arrived at Hermenegildo's house and spoke with Diana, Ortega, and Roque in the living room. Patricia was in a back bedroom watching television. Diana told Bruce she was not living with appellant, whom she referred to as “Chico.” Shortly thereafter, appellant knocked on the front door. Diana answered the door and appellant gave her a bag of clothes. Appellant asked Roque if he could speak with Diana in the back yard. Roque told him he would have to speak with her in the front yard, whereupon appellant and Diana sat on a sofa in the front yard. After appellant told Diana he wanted to see Edwin, she went back inside and got him, and the three of them then visited together.
According to Patricia, after going outside appellant and Diana talked for about 15 minutes before their voices got louder. After a period of loud talking, Diana started screaming, “No, Chico, no.” She then yelled for Ortega and Roque. Patricia looked out the window and saw appellant pointing a gun at Diana, who was screaming. Appellant grabbed Diana by the hair or neck and shot her three times.
Ortega testified that about 15 minutes after appellant and Diana went outside, she heard Diana yelling. She ran outside and saw appellant holding her by the hair. Appellant had one knee on the armrest of the sofa and Diana was sitting on it. After Ortega said “something nasty” to appellant and told him to release Diana, appellant took out a gun and pointed it at Ortega, who hid behind a tree. Ortega then ran to pick up Edwin, who had fallen between Diana's legs and was lying on the ground crying. Appellant struggled with Diana and then shot her.
Roque stated that when appellant knocked at the door looking for Diana, he did not appear to be angry. After Roque heard Diana screaming, she went outside and saw appellant and Diana struggling, both with their hands up in the air. After Ortega grabbed Edwin, appellant laid Diana's head on the sofa and fired three shots. He then jumped over a fence and ran. Roque saw a truck parked outside the house after the shooting, which someone said belonged to appellant's father.
Bruce testified she called 911 after she heard someone say, “[H]e's hurting her.” While on the phone she heard someone say, “[H]e's going to kill her,” and, “[H]e has a gun.” She then heard two shots and stayed on the phone until the police arrived. Hermenegildo was in the back yard when he heard Diana screaming, “No Chico, no Chico, no Chico.” As he walked toward the house he heard three shots. When he went out front, Roque told him appellant killed Diana, and Diana was lying on the ground.
At the time of the shooting Stacey Ashford was standing across the street and heard a man and woman arguing in Spanish, but did not understand what was said. He saw them “grabbing and pulling” and saw the man strike the woman numerous times while yelling at her, and saw him knock her to the ground. He then heard three or four shots, after which the man jumped a fence, walked about halfway up the block past Ashford holding a revolver, and started running. Ashford identified appellant as the man who passed him and did the shooting. He saw appellant tuck the gun under his armpit before he began running.
Appellant was arrested in March 1990 in Merced. He denied he was Enrique Ceja, identifying himself instead as Jacinto Garcia. However, documents in his possession included a driver's license in the name of Enrique Ceja. In appellant's tape-recorded statement to the police, which was played for the jury, he stated that he drove his father's pickup truck to Hermenegildo's house on the morning of the shooting and visited briefly with Diana. He said he left the truck at the house because it would not start. He denied killing Diana. Appellant did not testify, but presented an alibi defense which was, obviously, unpersuasive.
Appellant does not challenge the sufficiency of the evidence to support his conviction of murder. His sole contention is that the court erred in instructing the jury on murder by means of lying in wait because the evidence was insufficient to support that theory, and the error is prejudicial because it allowed the jury to find first degree murder without considering whether the elements of premeditation and deliberation were sufficiently proven.
Murder is classified by section 189 as either first or second degree, depending on the means by which it is committed. (People v. Dillon (1983) 34 Cal.3d 441, 464–465, 194 Cal.Rptr. 390, 668 P.2d 697.) Section 189 states, in relevant part: “All murder which is perpetrated by means of ․ lying in wait, ․, or by any other kind of willful, deliberate, and premeditated killing, ․, is murder of the first degree; and all other kinds of murders are of the second degree․” “The statute assumes that if the means of the murder are by lying in wait, those means adequately establish the murder as the equivalent of a [deliberate and] premeditated murder without any additional evidence of the defendant's mental state.” (People v. Hyde (1985) 166 Cal.App.3d 463, 475, 212 Cal.Rptr. 440; see People v. Ward (1972) 27 Cal.App.3d 218, 226, 103 Cal.Rptr. 671.)
Section 189 is founded upon section 21 of the Crimes and Punishments Act. (Stats. 1856, ch. 139, § 2, p. 219.) 2 In People v. Sanchez (1864) 24 Cal. 17, 29, our Supreme Court discussed the statutory division of the two degrees of murder as follows: “In dividing murder into two degrees, the Legislature intended ․ to establish a test by which the degree of every case of murder may be readily ascertained. That test may be thus stated: Is the killing wilful, (that is to say, intentional), deliberate and premeditated? If it is, the case falls within the first, and if not, within the second degree. There are certain kinds of murder which carry with them conclusive evidence of premeditation. These the Legislature has enumerated in the statute, and has taken upon itself the responsibility of saying that they shall be deemed and held to be murder of the first degree. These cases are of two classes. First—Where the killing is perpetrated by means of poison [lying in wait], etc. Here the means used is held to be conclusive evidence of premeditation. The second is where the killing is done in the perpetration or attempt to perpetrate some one of the felonies enumerated in the statute. Here the occasion is made conclusive evidence of premeditation. Where the case comes within either of these classes, the test question—‘Is the killing wilful, deliberate, and premeditated?’—is answered by the statute itself, and the jury have no option but to find the prisoner guilty in the first degree. Hence, so far as these two classes are concerned, all difficulty as to the question of degree is removed by the statute.”
Thus, if a murder is perpetrated by means of lying in wait, the prosecution is relieved from proving premeditation and deliberation in order to obtain a first degree conviction. (People v. Sanchez, supra, 24 Cal. at pp. 29–30, People v. Ward, supra, 27 Cal.App.3d at p. 226, 103 Cal.Rptr. 671; People v. Dickerson (1972) 23 Cal.App.3d 721, 727, 100 Cal.Rptr. 533.) “Nonetheless, the prosecution must first establish a murder within the meaning of section 187—that is, a killing with malice—before the means of the killing take on significance. [Citation.]” (People v. Hyde, supra, 166 Cal.App.3d at p. 475, 212 Cal.Rptr. 440.)
Of the various means by which murder becomes first degree, only two were submitted to the jury in this case: (1) murder by means of lying in wait; and (2) a deliberate and premeditated killing. Over appellant's objection, the court instructed the jury on murder by means of lying in wait (CALJIC 8.25) as follows: “Murder which is immediately preceded by lying in wait is murder of the first degree. [¶] The term lying in wait is defined as waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise, even though the victim is aware of the murderer's presence. [¶] The lying in wait need not continue for any period of time provided its duration is such to show state of mind, equivalent to premeditation or deliberation. [¶] The word premeditation means ․ considered beforehand. [¶] The word deliberation means formed or arrived at or determined upon as a result of careful thought and weighing of the considerations for and against the proposed course of action.” (Emphasis added.) The use of the disjunctive “or” to separate the elements of deliberation and premeditation in the foregoing instruction permitted the jury to equate lying in wait with either premeditation or deliberation, but did not require a finding on both, as does deliberate and premeditated murder. (See CALJIC 8.20; People v. Anderson (1968) 70 Cal.2d 15, 25, 73 Cal.Rptr. 550, 447 P.2d 942.)
The jury was also instructed on deliberate and premeditated murder (CALJIC 8.20), but it convicted appellant of first degree murder without indicating the theory of first degree murder on which it relied. Consequently, if the evidence is insufficient to support the lying in wait instruction, we are required to reverse. “[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand.” (People v. Green (1980) 27 Cal.3d 1, 69, 164 Cal.Rptr. 1, 609 P.2d 468; see People v. Guerra (1985) 40 Cal.3d 377, 387–388, 220 Cal.Rptr. 374, 708 P.2d 1252.)
If we applied a literal interpretation of lying in wait, our task would be relatively simple. However, the courts have not taken such an approach, but have expanded the concept and have left its application to a case-by-case analysis. (People v. Morales (1989) 48 Cal.3d 527, 557–558, 257 Cal.Rptr. 64, 770 P.2d 244.) The classic lying in wait case is the typical ambush scenario, where the killer waits for the victim from a concealed position and then attacks upon the victim's arrival. (See, e.g., People v. Ward, supra, 27 Cal.App.3d at p. 231, 103 Cal.Rptr. 671, and cases cited therein.) Lying in wait may also be found where the killer seeks out the victim. (Note, Murder Committed by Lying in Wait (1954) 42 Cal.L.Rev. 337, 338; People v. Byrd (1954) 42 Cal.2d 200, 266 P.2d 505; People v. Hyde, supra, 166 Cal.App.3d 463, 212 Cal.Rptr. 440.) Reduced to its bare essentials, “[l]ying in wait requires the elements of waiting, watching, and concealment for the purpose of taking a victim unawares. [Citations.]” (People v. Thomas (1953) 41 Cal.2d 470, 480, 261 P.2d 1; People v. Tuthill (1947) 31 Cal.2d 92, 100–101, 187 P.2d 16; People v. Hyde, supra, 166 Cal.App.3d at pp. 476–477, 212 Cal.Rptr. 440.)
Until recently, the case law reflected a divergence of opinion as to whether the element of concealment required the actual physical concealment of the defendant, or concealment of the defendant's purpose. (People v. Berberena (1989) 209 Cal.App.3d 1099, 1104, 257 Cal.Rptr. 672.) People v. Tuthill, supra, 31 Cal.2d 92, 187 P.2d 16, appears to be the first case in which the Supreme Court concluded that a concealment of purpose can constitute murder by means of lying in wait. (Id., at pp. 100–101, 187 P.2d 16.) Later, in People v. Atchley (1959) 53 Cal.2d 160, 346 P.2d 764, the Court stated, in part: “To constitute lying in wait, ․, a person's conduct must involve an intent to take another person unawares so as to do him bodily injury, and must include, as a means to that end, a waiting and watching for an opportune time to do the act, and also either a concealment in ambush or some other secrecy of design to take the other person by surprise.” (Id., at p. 175, fn. 4, 346 P.2d 764.) Recently, the Supreme Court has stated: “The concealment required for lying in wait ‘is that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendant's plan to take the victim by surprise. [Citation.] It is sufficient that a defendant's true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim. [Citations.]’ ” (People v. Webster (1991) 54 Cal.3d 411, 448, 285 Cal.Rptr. 31, 814 P.2d 1273, quoting People v. Morales, supra, 48 Cal.3d at p. 555, 257 Cal.Rptr. 64, 770 P.2d 244, in turn quoting People v. Sassounian (1986) 182 Cal.App.3d 361, 406–407, 226 Cal.Rptr. 880.)
However, regardless of whether the concealment involves the assailant or his purpose, a period of watching and waiting must exist for some period preceding the murder to classify it as first degree by means of lying in wait. “The duration of the waiting, watching, and concealment necessary to constitute lying in wait cannot be arbitrarily fixed in units of time, just as the time necessary for the ordinary willful, deliberate, and premeditated killing cannot be so fixed. There must, however, be substantial evidence of a long enough period of waiting and watching in concealment to show a state of mind equivalent to premeditation and deliberation before the court can properly give an instruction on lying in wait․ If it is claimed that the murder was by one of the means enumerated in section 189, there must also be substantial evidence of the use of such means. Thus in the case of murder by lying in wait it is not enough that the victim be unaware of the presence of his assailant until the fatal wound is inflicted. It is also necessary that there be substantial evidence of the elements of waiting and watching. Otherwise a killing that was the result of a rash impulse would be converted into first degree murder.” (People v. Thomas, supra, 41 Cal.2d at p. 481, 261 P.2d 1 [conc. opn. of Traynor, J.]; see People v. Ruiz (1988) 44 Cal.3d 589, 615, 244 Cal.Rptr. 200, 749 P.2d 854; People v. Ward, supra, 27 Cal.App.3d at pp. 229–231, 103 Cal.Rptr. 671.) If the intent to kill was unformed and unconsidered and merely a product of provocation and “hot anger of the moment and was executed without reflection,” then such a murder can be no greater than second degree. (People v. Thomas (1945) 25 Cal.2d 880, 890, 156 P.2d 7.)
“[A] ‘murder [committed] by means of lying in wait’ is one which occurs so immediately following a period of watching and waiting that there can be no lapse in the culpable state of mind between the homicide and the period of watchful waiting. [Citations.]” (People v. Berberena, supra, 209 Cal.App.3d at p. 1107, 257 Cal.Rptr. 672; see People v. Edelbacher (1989) 47 Cal.3d 983, 1021, 254 Cal.Rptr. 586, 766 P.2d 1; People v. Ruiz, supra, 44 Cal.3d at p. 615, 244 Cal.Rptr. 200, 749 P.2d 854.) The prosecution has the burden of proving the elements of waiting, watching and concealment, and must show that the defendant performed these acts in order to take the victim unawares and thereby facilitate his attack. (People v. Mattison (1971) 4 Cal.3d 177, 183, 93 Cal.Rptr. 185, 481 P.2d 193; People v. McDermand (1984) 162 Cal.App.3d 770, 786, 211 Cal.Rptr. 773.)
Unlike the lying in wait that fixes the degree of murder, where the murder “is perpetrated by means of ․ lying in wait ․” (§ 189, emphasis ours), lying in wait also constitutes a special circumstance mandating a penalty of death or life imprisonment without possibility of parole in any case of first degree murder when there has been a finding that “[t]he defendant intentionally killed the victim while lying in wait.” (§ 190.2, subd. (a)(15), emphasis ours.) The lying in wait special circumstance was added to the Penal Code by the 1978 death penalty initiative. (Prop. 7, Gen.Elec. (Nov. 7, 1978).) But any distinction between the concept of lying in wait as used in sections 189 and 190.2, subdivision (a)(15) relates, at most, to the timing of the actual killing, and not to the factors of watching, waiting or concealment.3
In People v. Webster, supra, 54 Cal.3d at p. 441, 285 Cal.Rptr. 31, 814 P.2d 1273, the Supreme Court stated that “[f]or purposes of first degree murder, ․ the killing must be ‘immediately preceded’ by the period of lying in wait. [For purposes of the special circumstance allegation, the murder must be committed] ‘while’ the defendant was lying in wait. [Citations.]” (Id., at p. 449, 285 Cal.Rptr. 31, 814 P.2d 1273.) The Webster ruling confirms the requirement of a killing immediately following the period of lying in wait for purposes of first degree murder. Otherwise, any appreciable lapse of time between the waiting and the killing militates against the requirement that the murder be accomplished by means of lying in wait. This is particularly true if lying in wait is defined as a concealment of purpose, or else the distinction between first and second degree murder would virtually disappear. (See People v. Ward, supra, 27 Cal.App.3d at p. 229, 103 Cal.Rptr. 671.)
For purposes of comparison and precedent, People v. Thomas, supra, 25 Cal.2d 880, 156 P.2d 7 and People v. Kahn (1961) 198 Cal.App.2d 326, 17 Cal.Rptr. 793, are two cases in which the facts most closely parallel those in the instant case.
In People v. Thomas, supra, 25 Cal.2d 880, 156 P.2d 7, the defendant and the victim lived together with their young child and the victim's mother. On the night of the murder, the defendant left the house at his regular time to go to work. Shortly thereafter, he returned to the house either because he missed the bus or doubted the victim's fidelity and wanted to check on her. Upon returning the defendant remained outside the house, overhearing a conversation between the victim and her mother about the victim's desire to go out to an establishment that provided its patrons private rooms. Thereafter, the defendant entered the house, seized the victim and began struggling with her and her mother. The defendant pushed the victim out the front door and the struggle continued until the victim was thrown off the porch and attempted to flee down the street, pleading with the defendant not to kill her. The defendant then fired five shots, four of them hitting and killing the victim. Following his arrest, the defendant told police he shot the victim because she had been “running around,” and on that particular night he had lain in wait to catch her. (Id., at pp. 888–889, 156 P.2d 7.) The Supreme Court stated that aside from the defendant's admission, the evidence tended to strongly show some degree of provocation and “hot anger,” and suggested conflicting inferences as to the existence of premeditation and deliberation. It noted that although defendant stated the victim had previously been unfaithful to him, he did not say he had previously planned to kill her. It also noted that he did not shoot the victim when he first saw her upon his return, nor after pushing her out of the house and off the porch. It concluded that the jury could have inferred he did not shoot her then because he had not then formed an intent to kill, or had already formed such an intent but that it was frustrated by the struggle with the victim and her mother. The court held that despite the defendant's admission, the evidence was insufficient as a matter of law to establish murder by lying in wait.
In People v. Kahn, supra, 198 Cal.App.2d 326, 17 Cal.Rptr. 793 the victim broke off his engagement to the defendant's sister, Sophia, causing her severe humiliation and causing the defendant's mother to suffer a nervous breakdown. Months later, the defendant went to the victim's home and asked to see him, identifying himself as a friend. After the defendant was told the victim would not be home until several hours later, he left, and upon his return was invited to wait for the victim in the living room. When the victim returned the defendant identified himself as Sophia's brother, and asked the housekeeper and her daughter to join him and the victim in the living room to hear what he had to say. When they did so, the defendant pointed a gun at the victim and asked him for $20,000 so that Sophia could take a trip around the world to forget the pain caused by the broken engagement. The victim stated he didn't have the money, and the defendant said he wanted it “right now” and said, “I will be happy to kill you.” (Id., at pp. 328–329, 17 Cal.Rptr. 793.) The victim then got up and said to the defendant, “You are Jewish and I am Jewish, both brothers, we don't kill each other.” (Id., at p. 329, 17 Cal.Rptr. 793, internal quotation marks omitted.) The two men began scuffling until the defendant fired one fatal shot into the victim's chest. The court noted that upon the victim's entry, the defendant did not spring upon him or attempt to use his gun immediately. Instead, he explained his mission to the victim, and the killing occurred during the course of a scuffle. The court held that it was error to instruct on lying in wait under those circumstances.
We conclude that the record in the instant case lacks substantial evidence that the murder was committed by means of lying in wait. To be substantial, evidence “must be ‘of ponderable legal significance ․ reasonable in nature, credible, and of solid value.’ [Citations.]” (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) This determination must be based on the entire record (id., at pp. 576–577, 162 Cal.Rptr. 431, 606 P.2d 738), viewed in a light most favorable to respondent. (People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659.) There is no substantial evidence of watching and waiting. Although the People contend that appellant's act of following Diana to the laundromat suggests watching and waiting, that occurred two or three days prior to the killing, and resulted in appellant benignly playing with his child and later having dinner with Diana. That appellant's father's truck was parked near Diana's house on the day of the killing is not, ipso facto, substantial evidence of watching and waiting. The lapse of time and intervention of other circumstances between the latest time appellant could have left the truck and the time of the shooting demonstrate that the killing was not immediately preceded by a period of lying in wait. (People v. Webster, supra, 54 Cal.3d at p. 449, 285 Cal.Rptr. 31, 814 P.2d 1273.)
Second, there is no evidence that appellant had a plan or concealed purpose to attack Diana unawares. Although Diana answered the door when appellant arrived at the house, he did not immediately assault her. Rather, they spent some time talking. Diana then reentered the house and returned with their son, whereupon the three of them visited together for a while. It was only after their meeting escalated into an argument and a physical confrontation and Ortega directed disparaging remarks to appellant, that the shooting occurred. The evidence is more suggestive that the killing was a product of appellant's “hot anger of the moment and was executed without reflection” rather than the result of any plan, secrecy or concealment. (People v. Thomas, supra, 25 Cal.2d at p. 890, 156 P.2d 7.)
Finally, there is no suggestion that appellant attacked Diana from a position of advantage or seclusion. Appellant had no more advantage over Diana at the time he actually fired the fatal shot than he had at any time during and after they first met at the front door. To the contrary, the fact that appellant shot Diana in Ortega's presence during an argument, rather than while seated alone with her, suggests the killing resulted from anger and provocation rather than from a planned, surprise attack.
We also conclude the error requires reversal of the degree of the offense, because it is impossible to determine the theory of first degree murder upon which the jury relied—lying in wait, or premeditation and deliberation. (See People v. Green, supra, 27 Cal.3d at p. 69, 164 Cal.Rptr. 1, 609 P.2d 468.)
Since appellant does not challenge his conviction of murder per se, and the evidence sufficiently supports a finding of malice, the conviction of murder is affirmed, but the finding of first degree is reversed. The question of retrial on the degree of murder is with the district attorney. However, in the interests of economy, unless the district attorney moves the trial court within 60 days of the issuance of our remittitur to retry the degree of murder, the abstract of judgment shall be modified to reflect a judgment of conviction of murder in the second degree, and the trial court shall prepare and transmit a modified abstract of judgment to the Department of Corrections. In all other aspects, the judgment is affirmed.
1. Unless otherwise indicated, all further statutory references are to the Penal Code.
2. “All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree․” (Stats. 1856, ch. 139, § 2, p. 219.)
3. In People v. Morales, supra, 48 Cal.3d 527, 257 Cal.Rptr. 64, 770 P.2d 244, the Supreme Court discussed lying in wait under the special circumstance statute (§ 190.2, subd. (a)(15)) as requiring “(1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage․” (Id., at p. 557, 257 Cal.Rptr. 64, 770 P.2d 244.) These factors were reaffirmed in People v. Edwards (1991) 54 Cal.3d 787, 821–825, 1 Cal.Rptr.2d 696, 819 P.2d 436. (See also, Domino v. Superior Court (1982) 129 Cal.App.3d 1000, 1012, 181 Cal.Rptr. 486 [conc. opn. of Barry–Deal, J.].)
HANING, Associate Justice.
LOW, J.,* and KING, Acting P.J., concur.