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Court of Appeal, First District, Division 3, California.

Floyzell JONES et al., Plaintiffs and Appellants, v. KMART CORPORATION et al., Defendants and Appellants.

No. A067794.

Decided: November 22, 1996

Pamela Y. Price, Oakland, Karen T. Wolff, San Francisco, Darryl Parker, and Sarah Lawrence, Oakland, for Plaintiffs and Appellants. J. Randall Andrada, Oakland, Frederick D. Baker, and Stuart W. Miller, San Francisco, for Defendants and Appellants.

Civil Code section 52.1 1 authorizes an action for damages and attorney fees against anyone who, “whether or not acting under color of law,” interferes by threats, intimidation, or coercion with an individual's exercise or enjoyment of rights secured by the federal or state Constitutions or laws.   In this case, we hold that when a claim is based on a constitutional right that can only be violated by state action, a section 52.1 action only lies against parties whose conduct is chargeable to the state.

Appellants Kmart Corporation and its employee, William P. McGuinness (collectively, Kmart), appeal from a judgment and order awarding respondent Belafanti Jones (Jones) $71,394.25 in damages and a total of $216,762.50 in attorney fees.2  Jones sued Kmart for (1) false imprisonment, (2) assault and battery, (3) violation of his right under section 51.7 to be free from violence committed because of his race, (4) violation of his federal and state constitutional rights to be free from unreasonable search and seizure, resulting in civil damages under section 52.1, and (5) negligence.   The action was based on an incident in which Kmart security personnel detained and handcuffed Jones in the store's parking lot because they suspected him of shoplifting.   The suspicion was misplaced.   Jones cross-appeals, challenging the trial court's refusal to instruct the jury that Kmart lacked probable cause to detain him.   We reverse that portion of the judgment awarding damages and attorney fees under section 52.1, and otherwise affirm.


On the morning of May 26, 1991, 16–year–old Jones entered a Kmart store in San Leandro with his mother, two sisters, brother, and other family members.   Jones wanted to buy some dye to color a pair of pants.   He picked up a box of dye and then went to the electronics department.   He looked at various items, and handled a calculator and cassette tapes, but did not keep anything except the dye.   Brian Schmidt, a Kmart security employee, saw Jones walking up and down the aisles.   Schmidt became suspicious and continued to watch Jones, believing he was a potential shoplifter.

As Jones was walking through the store, one of his cousins told him his mother was looking for him.   Jones looked for his mother unsuccessfully in the women's clothing department.   He then walked toward the cash registers, where his sister Lashall told him their mother was waiting for him outside in their van.   Jones went to the front aisle of the store, put down the box of dye near one of the cash registers, walked in front of the registers, and left the store through the front door.

Schmidt did not see Jones put down the box of dye;  customers and cash registers blocked his view.   He also did not check to see if Jones had put down the box.   Instead, Schmidt called a “code blue,” meaning a serious situation required back-up assistance.   Schmidt and appellant McGuinness, Kmart's loss prevention manager, ran after Jones and yelled at him, “hey, excuse me.”   Jones turned around, saw the two men (who were wearing jeans and regular shirts), and continued walking.   Schmidt and McGuinness repeated, “hey, excuse me.”   Jones stopped and turned a second time and again continued on his way.   Schmidt and McGuinness caught up with Jones as he neared the van.   They grabbed him by the arms and asked what he had done with the items he had in the store.   Jones told them he had left the box of dye in the front of the store.

Jones's mother got out of the van and asked what was going on.   McGuinness told her they suspected Jones of stealing and were going to search him.   Mrs. Jones asked her son if he had stolen anything;  he said he had not.   She objected to any search and told McGuinness to call the police.   McGuinness refused, and asked Jones what was in his left front pants pocket.   Jones replied it was a cassette tape of his, and started to remove it from his pocket.   Mrs. Jones told him to put it back and he did.   She again asked McGuinness to contact the police and he refused a second time.   Mrs. Jones asked Lashall to telephone the police.   McGuinness then conducted a patsearch of Jones's pocket.   Without Jones's permission and over his mother's objections, McGuinness took the cassette tape.

McGuinness then stated he needed to handcuff Jones.   Mrs. Jones repeated her request the police be called.   McGuinness refused.   He grabbed Jones's left arm to handcuff him, Jones resisted, and a struggle ensued.   Four or five Kmart employees were at the scene by this time and assisted in subduing Jones.   In the process, Jones's shirt was torn off, he was thrown against the van and a parked car, punched in the face and neck, and placed in a choke hold.   He suffered neck and shoulder pain as a result.

One of the Kmart employees took the cassette tape into the store, learned it was not Kmart property, and reported back to McGuinness.   McGuinness and the other employees released Jones.   When a San Leandro police officer arrived on the scene, McGuinness told him there had been a misunderstanding about a theft of a cassette tape.

The case went to trial on four causes of action—false imprisonment, assault and battery, “racial violence” under section 51.7, and negligence.   Following the close of evidence, Jones moved to amend the third cause of action to include a claim under section 52.1 for interference with his rights under the state and federal Constitutions.   Kmart objected that section 52.1 does not provide a cause of action for all violations of constitutional rights, but only for those involving hate crimes or discrimination.   The trial court permitted the amendment.   Jones agreed to jury instructions framing his constitutional claims in terms of the search and seizure clauses in the Fourth Amendment to the United States Constitution and article I, section 13 of the California Constitution.   Kmart objected to the instructions on the ground its conduct did not implicate these constitutional provisions.   The trial court overruled the objection.   In closing argument, Jones contended Kmart had violated his right to be free from unreasonable search and seizure.

Jones proposed, and the trial court accepted, an instruction telling the jury it could award Jones damages for the deprivation of his civil rights without any proof of actual damages.   Kmart unsuccessfully objected that proof of actual damages was required.

Jones also proposed a jury instruction that there had been no probable cause to detain him, preventing Kmart from claiming the merchant's privilege to detain a suspected shoplifter (Pen.Code, § 490.5, subd. (f)).  Jones's counsel stipulated for purposes of argument that Schmidt had observed Jones untuck his shirt, walk through the store, handle merchandise, hold a box of dye as he was looking around, and exit the store by walking in front of the checkout counters without going through a checkout line.   The trial court refused the proposed instruction, finding Kmart's employees had probable cause to detain Jones for brief questioning based on the stipulated facts.

The jury returned a verdict in Jones's favor on his claims of false imprisonment, battery, violation of constitutional rights, and negligence.   The jury found Kmart did not discriminate against Jones based on his race, or subject him to violence or intimidation because of his race.   Under the heading of compensatory damages, the jury awarded Jones $1,394.25 in economic damages and $40,000 in noneconomic damages.   Under the heading of damages for violation of civil rights, the jury awarded him $30,000.   It did not award punitive damages.   The trial court's judgment provided Jones was entitled to attorney fees in an amount to be determined upon application.   Jones later recovered $188,724 in attorney fees for trial and pretrial work and $28,038.50 for work on his fee application.


Kmart contends (1) section 52.1 does not permit an award of damages and attorney fees without a finding of discriminatory intent (see Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1809, 35 Cal.Rptr.2d 282 [inferring a requirement of discriminatory intent for violation of section 52.1] );  (2) it was error to permit Jones to recover both compensatory damages and damages for violation of his civil rights under section 52.1;  and (3) Jones could not recover under section 52.1 because there was no state action or action under color of law by Kmart.   We agree with Kmart's state action contention, which makes it unnecessary for us to consider the discriminatory intent argument and requires reversal of the civil rights damages.   We find no merit in Jones's cross-appeal challenging the trial court's ruling Kmart had probable cause to detain him.

1. Section 52.1 Does Not Eliminate the State Action Requirement

Section 52.1, subdivision (a) authorizes the Attorney General and any city or district attorney to bring a civil action for injunctive relief “[w]henever a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state․”  Subdivision (b) of section 52.1 authorizes any individual whose rights have been violated as described in subdivision (a) to bring an action for damages, and subdivision (h) permits the plaintiff to recover attorney fees.3

 Jones's section 52.1 claim was based on his contention Kmart's use of excessive force and its illegal search of his person violated his state and federal constitutional rights.   The parties' argument, the jury instructions, and the special verdict form premised Kmart's section 52.1 liability solely on violation of either the Fourth Amendment to the United States Constitution or article I, section 13 of the California Constitution.   Kmart correctly argues neither constitutional provision was violated, because there was no state action.

 The proscription against unreasonable search and seizure in the Fourth Amendment applies only to the acts of government officers or their agents.   The right secured is a right to be free from unreasonable governmental intrusion or acquisition.  (Skinner v. Railway Labor Executives' Ass'n. (1989) 489 U.S. 602, 614, 109 S.Ct. 1402, 1411–1412, 103 L.Ed.2d 639;  Burdeau v. McDowell (1921) 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048;  In re Christopher H. (1991) 227 Cal.App.3d 1567, 1572, 278 Cal.Rptr. 577.)   In order for conduct by private parties to be deemed state action under the federal Constitution, “the party charged with the deprivation [of a federal right] must be a person who may fairly be said to be a state actor.   This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.   Without a limit such as this, private parties could face constitutional litigation whenever they seek to rely on some state rule governing their interactions with the community surrounding them.”  (Lugar v. Edmondson Oil Co., Inc. (1982) 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482;  see also Collins v. Womancare (9th Cir.1989) 878 F.2d 1145, 1151–1156 [citizen's arrests performed by private employees did not constitute state action];  In re Christopher H., supra, 227 Cal.App.3d at p. 1576, 278 Cal.Rptr. 577 [detention and search by private security guards did not implicate Fourth Amendment rights].)   Kmart's conduct in this case was clearly not state action under federal constitutional law.

 Similarly, the right to be free from unreasonable search and seizure provided in article I, section 13 of the California Constitution is subject to a state action requirement.  (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 19, 26 Cal.Rptr.2d 834, 865 P.2d 633;  In re William G. (1985) 40 Cal.3d 550, 557, fn. 5, 558–559, 221 Cal.Rptr. 118, 709 P.2d 1287;  People v. Zelinski (1979) 24 Cal.3d 357, 365, 155 Cal.Rptr. 575, 594 P.2d 1000.)   In Zelinski, our Supreme Court ruled under state constitutional search and seizure principles, “when a merchant exercises his common law privilege (now embodied in Pen.Code, § 490.5), to detain a person suspected of taking merchandise, the merchant is exercising a purely private and self-interested right to protect his property.   His conduct does not assume the color of law until he formally arrests the suspected thief, as any citizen is empowered to do (Pen.Code, § 837), or, alternatively, continues the detention for delivery of the suspect to a peace officer who may arrest.   Detention and search of a shoplifter, followed by release by the merchant, brings into play no state interest that concerns us here.”  (People v. Zelinski, supra, 24 Cal.3d at p. 368, fn. 10, 155 Cal.Rptr. 575, 594 P.2d 1000.)   Jones does not contend Kmart's actions amounted to an arrest.   Under Zelinski, Kmart's detention, search, and release of Jones did not deprive him of any rights under article I, section 13 of the state Constitution.4

 Jones argues the Legislature eliminated any state action requirement by specifying liability under section 52.1 may be incurred whether or not the defendant is acting under color of law.   However, there is no simple correlation between action “under color of law” and “state action” that might justify such a conclusion.   The concept of action under color of law derives from the federal civil rights statute, 42 U.S.C. section 1983, which predicates liability for civil rights violations on action taken “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory․”  The United States Supreme Court has noted while state action is always “under color of law,” not all action taken under color of law satisfies the state action requirement.  (Lugar v. Edmondson Oil Co., Inc., supra, 457 U.S. at p. 935, and fn. 18, 102 S.Ct. at p. 2752, and fn. 18.)   Furthermore, 42 U.S.C. section 1983, like section 52.1, applies to constitutional or statutory rights that do not require state action as well as to those that do.5  When the right involved does not require state action, the federal statute requires the plaintiff to establish both the violation of a protected right and action under color of law by the defendant.  (Ibid.)

 Our Legislature has made it clear section 52.1 includes no separate element of action under color of law.   When the requisite threats, intimidation, or coercion are present,6 section 52.1 provides a remedy for violation of constitutional rights without regard to whether the defendant acted under color of law.   But this does not mean the state action requirement has been written out of federal and state constitutional law when the plaintiff sues a private party under section 52.1 for violation of a right requiring state action.   The parties have provided us with extensive documentation and argument on the legislative history of section 52.1.   Nothing in that history indicates the Legislature intended such a result.   The plain terms of the statute specify liability under section 52.1 depends on interference with “rights secured by the Constitution or laws” of the United States or of California.   Dispensing with the “color of law” requirement, which is a creature of federal statute rather than constitutional law, does not alter the nature of the rights secured by the federal or state Constitutions.

Jones points out the provisions of section 52.1 with which we are concerned were closely patterned after sections 11H and 11I of the Massachusetts Civil Rights Act of 1979.  (See fn. 7, post;  Final Rep., Atty. Gen.'s Com. on Racial, Ethnic, Religious, and Minority Violence, Apr. 1986, pp. 23–24;  People v. Lashley, supra, 1 Cal.App.4th 938, 947–948, 2 Cal.Rptr.2d 629 [construing criminal statutes enacted together with section 42.1 by Stats.1987, ch. 1277].)   Jones urges us to follow the example of the Supreme Judicial Court of Massachusetts, which has interpreted the Massachusetts statutes to eliminate any requirement of state action for recovery of civil rights damages.   We cannot agree with the Massachusetts court's reasoning, which is most fully explained in Bell v. Mazza (1985) 394 Mass. 176, 474 N.E.2d 1111.

In Bell, the trial judge dismissed an action seeking damages for violation of the plaintiffs' property rights, ruling that because the constitutional right they asserted could not be violated without state action, the plaintiffs had no “secured right” to assert under the Massachusetts civil rights statutes.7  The Supreme Judicial Court reversed.   It noted it had previously examined the legislative history of the statutes and concluded the Legislature intended to provide a remedy coextensive with 42 U.S.C. section 1983, except the federal statute requires state action and its state counterpart does not.  (Bell v. Mazza, supra, 474 N.E.2d at p. 1114;  see Batchelder v. Allied Stores Corp. (1985) 393 Mass. 819, 473 N.E.2d 1128, 1130.)  Bell and Batchelder are in error when they posit a state action requirement under 42 U.S.C. section 1983.   Action under color of law is what the federal statute requires, regardless of whether the right at issue depends on state action.

Bell cites Lugar v. Edmondson Oil Co., Inc., supra, 457 U.S. at p. 928, 102 S.Ct. at p. 2749 for the proposition that “[t]he phrase ‘whether or not acting under color of law’ is understood to mean whether or not State action is present.”  (Bell v. Mazza, supra, 474 N.E.2d at p. 1115.)   This is a misreading of Lugar.   The Lugar court observed that “until recently this Court did not distinguish between the two requirements․”  (Lugar v. Edmondson Oil Co., Inc., supra, 457 U.S. at p. 928, 102 S.Ct. at p. 2749, italics added.)   The Supreme Court then proceeded to reaffirm its statement in Flagg Brothers, Inc. v. Brooks (1978) 436 U.S. 149, 155–156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185:  “these two elements [state action and action under color of state law] denote two separate areas of inquiry.”  (Lugar v. Edmondson Oil Co., Inc., supra, 457 U.S. at pp. 930 and 935, fn. 18, 102 S.Ct. at pp. 2750 and 2752, fn. 18.)   The majority in Lugar concluded that a debtor whose property was subjected to prejudgment attachment was deprived of his property through state action, and therefore the creditor who filed the attachment proceeding under state law was acting under color of law for purposes of 42 U.S.C. section 1983.  (Lugar v. Edmondson Oil Co., Inc., supra, 457 U.S. at p. 942, 102 S.Ct. at p. 2756.)   The dissenters in Lugar argued a private party's commencement of proceedings under a presumptively valid statute is neither state action nor action under color of law.  (Id. at pp. 943, 947–948, 102 S.Ct. at pp. 2756–2757, 2758–2760.)   What is significant for purposes of this case is both the majority and the dissenters emphasized state action is analytically distinct from action under color of law.  (See also, e.g., Pino v. Higgs (10th Cir.1996) 75 F.3d 1461, 1464.)

From its erroneous premise equating state action with action under color of law, Bell reasons the Massachusetts Legislature “at least intended to incorporate a proscription on private acts in deprivation of secured constitutional rights,” and that a liberal construction of that proscription is required.  (Bell v. Mazza, supra, 474 N.E.2d at p. 1114.)  Bell then adopts a definition of “secured ․ by the Constitution or laws” from a concurring opinion by Justice Brennan in United States v. Guest (1966) 383 U.S. 745, 778–779, 86 S.Ct. 1170, 1188–1189, 16 L.Ed.2d 239:  “[A] right can be deemed ‘secured ․ by the Constitution or laws of the United States,’ ․ even though only governmental interferences with the exercise of the right are prohibited by the Constitution itself (or another federal law).   The term ‘secured’ means ‘created by, arising under or dependent upon,’ [citation] rather than ‘fully protected.’   A right is ‘secured ․ by the Constitution’ ․ if it emanates from the Constitution, if it finds its source in the Constitution.”  (Bell v. Mazza, supra, 474 N.E.2d at p. 1115.)   This definition has never been adopted by a majority of the United States Supreme Court, and is inconsistent with the ordinary understanding of “secured,” which connotes a guarantee rather than an emanation or origination.  (See, e.g., Webster's Seventh New Collegiate Dict. (1972) p. 780, defining “secure” as “to put beyond hazard of losing or of not receiving:  guarantee <[secure] the blessings of liberty—U.S. Constitution >.”)  In our view, Justice Brennan's definition results in an unwarranted expansion of rights protected by the Constitution.

The Bell court concludes that its interpretation of the term “rights secured” prevents rendering the phrase superfluous and harmonizes the statutory provisions with their legislative intent.   We believe our Legislature rejected an “acting under color of law” requirement in section 52.1 in harmony with its intent to enact a civil rights statute providing more extensive protection than 42 U.S.C. section 1983 in cases involving threats, intimidation, or coercion.   However, nothing in the legislation suggests an intent to abandon settled principles of state and federal constitutional law.   We will not presume the Legislature intended to overturn the decisional law of many decades on the constitutional requirement of state action, when no such intent appears by express declaration or necessary implication.  (People v. Davenport (1985) 41 Cal.3d 247, 266, 221 Cal.Rptr. 794, 710 P.2d 861;  Busching v. Superior Court (1974) 12 Cal.3d 44, 52–53, 115 Cal.Rptr. 241, 524 P.2d 369.)

Since Jones's right to be free of unreasonable search and seizure by Kmart security personnel is not “secured by” either the federal or state Constitutions (and he asserted only constitutional violations as a ground for section 52.1 liability), he cannot recover from Kmart under section 52.1.   The trial court erroneously instructed the jury that Jones could recover for violation of his state and federal constitutional rights to be free from unreasonable search and seizure, over Kmart's proper objection that its conduct did not infringe those rights.

2. Jones Was Not Prejudiced by the Denial of an Instruction on Probable Cause

 Jones sought a jury instruction that Kmart had no probable cause to detain him, which would have precluded Kmart's successful assertion of the merchant's privilege.   The privilege is set forth in Penal Code section 490.5, subdivision (f)(1):  “A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises.”   The trial court refused to give Jones's proposed instruction.

Jones fails to establish any prejudice resulting from the denial of the instruction.   The jury found Kmart was not protected by the merchant's privilege;  its verdict and findings in Jones's favor on his false imprisonment claim reflect a determination Kmart's conduct during the detention and investigation was unreasonable.   Jones contends if the trial court had given the requested instruction, the jury could have found in his favor on his claim of racial discrimination under section 51.7.   This speculative argument ignores the absence of any evidence Kmart's conduct was racially motivated.8  The jury's finding Jones's civil rights violations were not racially motivated was fully supported by the record, and could not properly have been affected by Jones's proposed probable cause instruction.


The judgment is reversed insofar as it finds Kmart liable for violation of Jones's constitutional rights.   The $30,000 award for civil rights damages must be stricken, and the award of attorney fees must be reversed, since it was dependent on Kmart's liability under section 52.1.   In all other respects, the judgment is affirmed.   The parties shall bear their own costs on appeal.


1.   Further statutory references are to the Civil Code unless otherwise specified.

2.   Jones's mother Floyzell and his sister Shardella were also plaintiffs.   The jury awarded Shardella $6,450.00 and denied Floyzell's claim.   The parties do not contest these parts of the judgment on appeal.

3.   As originally enacted in 1987, section 52.1, subdivision (b) provided only for injunctive and “other appropriate equitable relief.”   (Stats.1987, ch. 1277, § 3.) In 1990, the Legislature amended the provision to authorize recovery of damages.  (Stats.1990, ch. 392, § 1.)

4.   While Zelinski, supra, 24 Cal.3d 357, 155 Cal.Rptr. 575, 594 P.2d 1000, has been abrogated by the enactment of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) for purposes of the exclusionary rule (In re Christopher H., supra, 227 Cal.App.3d at p. 1572, 278 Cal.Rptr. 577), those purposes are not at issue in this case.   Proposition 8 did not repeal state constitutional law regarding search and seizure;  it only affected the judicially created remedy of excluding evidence obtained in violation of that law.   Therefore, Zelinski 's interpretation of the scope of article I, section 13 of the state Constitution as it applies to searches and seizures by private security personnel remains good law.   (In re Lance W. (1985) 37 Cal.3d 873, 886–887, 210 Cal.Rptr. 631, 694 P.2d 744;  In re Christopher H., supra, 227 Cal.App.3d at p. 1571, 278 Cal.Rptr. 577.)

5.   For example, no state action is required for violation of the state constitutional right to privacy under article I, section 1 of the California Constitution (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 20, 26 Cal.Rptr.2d 834, 865 P.2d 633), or the statutory right to be free from bodily restraint or harm under section 43.   (People v. Lashley (1991) 1 Cal.App.4th 938, 950–951, 2 Cal.Rptr.2d 629.)

6.   We express no view on whether a discriminatory intent is also required for there to be liability under section 52.1.  (See Boccato v. City of Hermosa Beach, supra, 29 Cal.App.4th 1797, 1809, 35 Cal.Rptr.2d 282.)

7.   The Bell opinion, at 474 N.E.2d at 1112, footnote 3, quotes the relevant statutes as follows:  “ ‘Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured.’ ”  (Mass.Gen.Laws, ch. 12, § 11H.)“ ‘Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages.   Any aggrieved person or persons who prevail in an action authorized by this section shall be entitled to an award of the costs of the litigation and reasonable attorneys' fees in an amount to be fixed by the court.’ ”   (Mass.Gen.Laws, ch. 12, § 11I.)

8.   There was no evidence of racial epithets or other animus on the part of Kmart security personnel, one of whom was the same race as Jones.   Nor was there evidence Kmart singled out customers of any particular race for special scrutiny as potential shoplifters.

PARRILLI, Associate Justice.

CORRIGAN, Acting P.J., and WALKER, J., concur.