The PEOPLE, Plaintiff and Respondent, v. Victor Manuel ORBE, Defendant and Appellant.
A jury found Victor Manuel Orbe guilty of selling heroin (Health & Saf.Code,2 § 11352, subd. (a); count 1), transporting heroin (§ 11352, subd. (a); count 2), possessing heroin for sale (§ 11351; count 3), possessing cocaine for sale (§ 11351; count 4), and contributing to the delinquency of a minor (Pen.Code, § 272; count 7). On the possession for sale crimes in counts three and four, the jury found Orbe was personally armed with a firearm, a handgun, within the meaning of Penal Code section 12022, subdivision (c). Pursuant to instructions that simple possession charges were lesser included offenses, the jury did not return verdicts on such charges in counts five and six.
The trial court sentenced Orbe to prison for a total of seven years consisting of a midterm of three years on the possession of heroin for sale conviction in count three and a consecutive four-year term for being personally armed. The court imposed a concurrent four-year term on the sale of heroin conviction in count one and a concurrent seven-year term on the possession of cocaine for sale conviction with the firearm enhancement in count four. It stayed sentencing under Penal Code section 654 on the transporting heroin conviction in count two.
In his appeal Orbe contends (1) the trial court prejudicially erred when it did not instruct sua sponte on the weight to be given expert testimony, (2) the use of CALJIC No. 2.90 violated his federal due process and jury trial rights, (3) his convictions for both transportation and sale of heroin are cooperative acts constituting but one offense and do not support multiple convictions, (4) the findings of personal arming on the possession for sale convictions in counts three and four are not supported by the evidence, and (5) the court erred in imposing the personal arming enhancement for both counts three and four because the offenses comprised an indivisible transaction and were incident to one objective.
San Diego County Sheriff's Detectives Randall Webb and Larry Van Wey were part of a team investigating drug selling from an apartment at 245 Palm Drive in Vista. On October 20, 1992, they obtained a search warrant for the apartment, and on October 28 took out a room in a motel located about one mile away in order to carry out a controlled purchase of heroin. Webb telephoned the apartment at about 1 p.m. on October 28 and Orbe answered. Webb asked for “Gabby,” 16 year-old Gabriella G. who was living with Orbe at the apartment. Orbe gave the telephone to Gabriella, and Webb asked her to sell him $40 worth of heroin. Webb heard her tell Orbe that an unknown person wanted to buy black tar heroin. Orbe told her it was okay to make the sale. Webb gave directions to the motel room where he remained until Orbe arrived about 10 minutes later and sold one bindle of heroin to Webb for $40. Orbe and Gabriella were under surveillance by Van Wey and other officers from the time they left Orbe's apartment.
As Orbe walked back to the car in which he and Gabriella had traveled to the motel, Webb and Van Wey arrested him. Orbe was taken to the Vista sheriff's station. With Van Wey acting as the lead agent for the search, the deputies then went to the Palm Drive apartment to execute the search warrant. When Van Wey knocked and announced the deputies' purpose, he heard someone running inside. The deputies opened the door and entered, finding Orbe's father inside. In a search of Orbe's father, the deputies recovered a 35mm film canister containing 11 bindles of black tar heroin and a bag of cocaine along with $308 in cash. The bindles of heroin were of the same color and type as the bindle Orbe sold to Webb. The amount of heroin in the 11 bindles totaled 2.95 grams and individually ranged from .05 grams to one gram per bindle. A dosage unit of heroin is in the range of .03 to .06 grams and sells from $10 to $20 per unit. The cocaine bindle weighed 6.4 grams. Usually cocaine is sold in .15 to .25 gram quantities for $20 to $25 each.
When Van Wey entered the apartment he saw a revolver on the couch about 10 or 12 feet from the front door which led into the kitchen. The revolver, a .38 Smith and Wesson, was loaded with six bullets. It was within 10 or 12 feet from various materials, such as three scales, plastic baggies and powdered sugar, indicating drug packaging activity took place in the living room and kitchen areas of the small two bedroom apartment. “Pay-owe” ledgers, a rental agreement and utility bills bearing Orbe's name were also found. A locked metal safe measuring two feet by two feet was on the living room floor. While the deputies were in the apartment, the telephone rang continuously, every four or five minutes. Webb answered six of the calls over a half-hour period, and on four of them the callers would first ask for Orbe, then Gabriella, then Orbe's father. On the other two calls, the callers asked for Orbe or Gabriella.
About three hours after Orbe's arrest, Webb gave Orbe his Miranda 3 rights which Orbe understood and waived. Orbe gave a confession, starting with his remembering talking to Webb on the telephone and telling Gabriella it was okay to make the sale of heroin Webb requested. Orbe said his father was asleep when the call was made. After the call from Webb, some guests left the apartment and Orbe put the film canister containing about two grams of heroin and seven grams of cocaine on the kitchen table. Orbe said he had been selling drugs for two to three months and his father had figured this out just two weeks earlier when he confronted him and Orbe told him about the whole business. After telling his father about the drug selling business, Orbe began openly leaving the drugs out instead of hiding them. Orbe said he was selling daily between one and one-half and two grams of heroin, $400 per day, and about one-half gram of cocaine, $50 per day. He said that when he went out to make a sale he normally left the majority of the drugs that he had for sale out in the open in the apartment.
Asked how he was set up in business, Orbe said the people he worked with were leaving him between six and eight grams of heroin and about seven grams of cocaine per week. These people also provided the revolver found in the apartment. In return for selling the drugs, the suppliers were paying Orbe and Gabriella $200 per week, paying for their apartment and paying the utilities.
The parties stipulated that Orbe's father and Gabriella both pled guilty to drug related felonies arising from the events of October 28, 1992.
Van Wey qualified as an expert and gave his opinion the bindles of heroin were possessed for sales based on the way they were packaged, preweighed using the scales, the amount present, the fact sales were memorialized and the fact it was sold to Webb. Van Wey similarly opined the cocaine was possessed for sale based on distinctive entries in the pay-owe sheets referring to “blanca” and “negra,” the scales, the packaging and the numerous telephone calls asking to purchase both cocaine and heroin. Van Wey said that persons who sell narcotics often arm themselves for multiple reasons including protection of their “investment” from robbers or the police.
Orbe contends the trial court prejudicially erred when it failed in its obligation to sua sponte instruct the jury on the weight to be given expert opinion testimony. Pertaining to the testimony of a criminalist about having tested and determined the substances to be cocaine and heroin and of the detectives, particularly Van Wey, about possession of heroin and cocaine for sale, Orbe argues CALJIC No. 2.80 4 on expert testimony should have been given sua sponte in accord with Penal Code section 1127b. (See People v. Bowens (1964) 229 Cal.App.2d 590, 600, 40 Cal.Rptr. 435 (disapproved on another point in People v. Mayberry (1975) 15 Cal.3d. 143, 158, 125 Cal.Rptr. 745, 542 P.2d 1337; see also People v. Reeder (1976) 65 Cal.App.3d 235, 241, 135 Cal.Rptr. 421; People v. Ruiz (1970) 11 Cal.App.3d 852, 865, 90 Cal.Rptr. 110.) Orbe acknowledges, however, the general rule is:
“[T]he erroneous failure to instruct on the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the entire cause, determines that the jury might have rendered a different verdict had the omitted instruction been given. [Citation.]” (Reeder, supra, 65 Cal.App.3d at p. 241, 135 Cal.Rptr. 421.)
Orbe focuses on the possession for sale counts, emphasizing that the heroin and cocaine were recovered from the person of his father and noting that to prove these counts the prosecution relied in part on the testimony of the officers about narcotics sales in general and the facts of this case in relation to the officers' expertise on the subject of narcotics sales. For example, he mentions the written materials which Van Wey described as records of amounts of drugs paid or sold, the powdered sugar and scales on the kitchen table that Van Wey said were used for cutting and packaging contraband, and the presence of the gun which contributed to Van Wey's conclusion the heroin and cocaine were possessed for sale.
Examining this evidence and the record of the entire cause, we conclude there was no likelihood of a different verdict had the jury been instructed on the weight to be given expert opinion testimony under CALJIC No. 2.80. It took no expertise for the jury to compare the bindle of black tar heroin Orbe sold to Webb with the 11 bindles of black tar heroin found on Orbe's father in Orbe's apartment, the place from which Orbe approved the sale to Webb minutes before he carried it out. When combined with the presence of the scales and baggie material in Orbe's apartment, this evidence reasonably would raise an inference of possession of heroin for sale without regard to expert opinion testimony. Likewise, the even greater quantity of as yet unpackaged cocaine, also combined with the baggie packaging material and scales, as well as the powdered sugar, permitted a reasonable inference it too was possessed for sale without the need for expert opinion testimony.
The jury was instructed to view Orbe's admission or confession with caution (CALJIC No. 2.70) and that the corpus delicti must be proven independent of his admission or confession (CALJIC No. 2.72). The above-mentioned evidence establishes the corpus delicti of the possession for sale charges independent of Orbe's post-arrest statements. We must assume the jury followed the instruction to view his oral admissions or confession with caution. However, this does not mean we view the matter as if the jury ignored the admissions or confession. Thus, the above-cited evidence, combined with Orbe's post-arrest statements admitting he had left the drugs on the kitchen table and that he had been selling drugs for two to three months fortify our conclusion the jury would not have reached a different result on the possession for sale counts even disregarding the expert opinion testimony of detectives Van Wey and Webb.5
Adding to the absence of any likelihood of a different result is the fact that the jury was instructed, albeit not specifically with regard to expert opinion testimony, that “You are the sole judges of the believability of the witness [sic ] and the weight to be given to the testimony of each witness.” (CALJIC No. 2.20.) This instruction further sets forth factors to consider in determining truthfulness including the presence of bias or motive for the testimony. Applied to the expert opinion testimony, this instruction carries much the same message as CALJIC No. 2.80 and thus reduces the probability of a different result if CALJIC No. 2.80 had been given.
No reversal is warranted for the trial court's not having instructed sua sponte in the language of CALJIC No. 2.80.
Orbe contends his convictions of selling heroin in count one and transporting heroin in count two are cooperative acts constituting but one offense and do not support multiple convictions. The contention is without merit.
An identical contention was rejected in People v. Lopez (1992) 11 Cal.App.4th 844, 847, 14 Cal.Rptr.2d 278, involving an indistinguishable set of convictions under section 11352, offering to sell cocaine and transporting cocaine. Both offenses resulted from a set of events in which it was arranged to sell two kilograms of cocaine to an undercover detective, the cocaine was transported in a car to the site where the sale was to take place and, when the cocaine was removed from the trunk of the car, Lopez and his cohort were arrested. (People v. Lopez, supra, 11 Cal.App.4th at p. 846, 14 Cal.Rptr.2d 278.)
Correctly analyzing the development of the decisional law in the area of double conviction and double punishment (Pen.Code, § 654; People v. Lopez, supra, 11 Cal.App.4th at pp. 847–850, 14 Cal.Rptr.2d 278),6 Lopez observed “appellant's criminal activities were directed to the single goal and objective of selling two kilograms of cocaine,” (id. 11 Cal.App.4th at p. 850, 14 Cal.Rptr.2d 278) and, quoting In re Adams, supra, 14 Cal.3d 629, 122 Cal.Rptr. 73, 536 P.2d 473, concluded:
“This ‘entire transaction should reasonably be viewed as constituting ․ the commission of a single punishable offense.’ (Id. at p. 635 [122 Cal.Rptr. 73, 536 P.2d 473.] ) Here, appellant has already been afforded that remedy by the trial court, namely, a stay of the punishment imposed pursuant to count two.
“Appellant was properly convicted of two counts of violation of Health and Safety Code section 11352.” (Lopez, supra, 11 Cal.App.4th at p. 850, 14 Cal.Rptr.2d 278.)
Likewise, in Orbe's case, the trial court has afforded him the appropriate remedy for the two convictions under section 11352, subdivision (a), for selling and for transporting heroin, that were involved in the transaction with detective Webb. The trial court's Penal Code section 654 stay of sentencing on the transporting heroin conviction in count two provided Orbe the remedy to which he is entitled under the current state of the law.
Orbe contends that the findings he was personally armed within the meaning of Penal Code section 12022, subdivision (c), in connection with the possession for sale convictions in counts three and four are not supported by the evidence and must be reversed. As of this writing the Supreme Court has granted review in many cases dealing with the question of what circumstances permit a finding a defendant was armed during commission of a crime involving possession of a controlled substance.7 Nevertheless, based on the test for personal possession set forth in the cases still representing the decisional law of the state, we are of the view substantial evidence supports the finding Orbe was personally armed in connection with his convictions of possessing heroin and cocaine for sale in counts three and four.
Penal Code section 12022, subdivision (c), provides in pertinent part:
“[A]ny person who is personally armed with a firearm in the commission or attempted commission of a violation of Section 11351 ․ [listing nine other controlled substance related offenses] of the Health and Safety Code, shall, upon conviction of that offense and in addition and consecutive to the punishment prescribed for the offense of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for three, four, or five years in the court's discretion․”
This additional punishment is prescribed “[n]otwithstanding the enhancement set forth in subdivision (a),” consisting of an additional term of one year, for simply being armed with a firearm as a principal, whether or not personally armed, in a completed or attempted felony. (Pen.Code, § 12022, subds. (a) and (c).) No doubt due to the frequency with which firearms are connected in dealings involving controlled substances, often with deadly consequences (see People v. Superior Court (Pomilia) (1991) 235 Cal.App.3d 1464, 1471, 1 Cal.Rptr.2d 386; see also People v. Wandick (1991) 227 Cal.App.3d 918, 927–928, 278 Cal.Rptr. 274), the additional prison term for the subdivision (c) “personally armed” enhancement is far longer than for the subdivision (a) “armed” enhancement, the minimum being three times the term for the “armed” enhancement under subdivision (a). This difference obviously reflects great legislative concern with the problem of controlled substance transactions involving a personally armed defendant.
Having said this, what does the Legislature mean by the words “personally armed”? This court has held the word “personally” is employed in Penal Code section 12022 to distinguish between personal and vicarious liability for the act of being armed; it defines the defendant's eligibility for the enhancement. (Pomilia, supra, 235 Cal.App.3d at p. 1471, 1 Cal.Rptr.2d 386; accord People v. Mendival (1992) 2 Cal.App.4th 562, 574, 3 Cal.Rptr.2d 566.) The conduct proscribed, as indicated by legislative history citing the holding in People v. Reaves (1974) 42 Cal.App.3d 852, 856–857, 117 Cal.Rptr. 163, is carrying a firearm or having “ ‘it available for use in either offense or defense.’ ” (Pomilia, supra, 235 Cal.App.3d at p. 1472, 1 Cal.Rptr.2d 386.) Pomilia held a defendant arrested and made to lie on the floor as he emerged from a bedroom in which two loaded pistols were located could properly be found to be personally armed in connection with a possession of cocaine for sale charge (§ 11351) arising from a search of a residence for a hostage. (Pomilia, supra, 235 Cal.App.3d at p. 1472, 1 Cal.Rptr.2d 386.) No hostage was located, but narcotics were in plain view. On a later search pursuant to a warrant, police found two ounces of cocaine and over a pound of marijuana, along with 15 guns, including a submachine gun and a sawed-off shotgun, dispersed throughout the residence. With reference to the firearms in the bedroom from which Pomilia had emerged (id. at p. 1471, 1 Cal.Rptr.2d 386), we concluded, “it is clear that a trier of fact could properly find that Pomilia did have firearms ‘available for use in offense or defense’ at the time of his arrest, although none of the firearms was on his person, and thus find Pomilia personally (rather than vicariously) was ‘armed’ within the meaning of section 12022, subdivision (c).” (Id. at p. 1472, 1 Cal.Rptr.2d 386.)
It is perhaps noteworthy that Pomilia neither discloses nor discusses the exact location of the controlled substances possessed for sale in relation to the loaded pistols or the bedroom in which the pistols were located. All we know is that the controlled substances and firearms were found in a multi-room residence described as Pomilia's at a time when he and two others were present. (Id. at p. 1467, 1 Cal.Rptr.2d 386.) The Pomilia holding, however, makes it clear the “personally armed” enhancement could be applied to the offense at issue, possession of cocaine for sale. In other words, the defendant could be found to be personally armed with a firearm “in the commission or attempted commission” of the offense; he could be found to have the firearm available for offensive or defensive use in connection with the possession for sale offense even though he was under arrest when the firearms were located along with the controlled substances in the same residence. Implied in this determination is recognition of the “possession for sale” offense as one involving an ongoing temporal aspect during the existence of which a defendant having a firearm available for use in offense or defense is subject to the enhancement for being personally armed.
Consistent with this determination are cases upholding personally armed enhancements such as Mendival, supra, 2 Cal.App.4th 562, 567, 569–574, 3 Cal.Rptr.2d 566 (codefendants in car in which unloaded firearm was on floorboard and 6.8 pounds of cocaine in a backpack in trunk), and People v. Searle (1989) 213 Cal.App.3d 1091, 1095, 1099, 261 Cal.Rptr. 898 (defendant in car from which he sold cocaine and in unlocked back compartment of car there was a loaded .357 Ruger). (See also People v. Wandick, supra, 227 Cal.App.3d 918, 921, 927, 278 Cal.Rptr. 274; People v. Garcia (1986) 183 Cal.App.3d 335, 350, 228 Cal.Rptr. 87.)
The evidence here fully supports the determination that during Orbe's commission of the offenses of possessing the heroin and cocaine for sale, ongoing crimes that the record shows occurred in Orbe's apartment at least as of the time he left to sell the heroin to Webb, he had available for use in offense or defense the loaded .38 caliber Smith and Wesson revolver. Availability for such use is shown in the facts that Orbe's firearm was lying openly on the couch, not more than 12 feet from the entry to the apartment and a shorter distance from the kitchen table where Orbe put the salable amounts of heroin and cocaine before he left to make the sale to undercover detective Webb. Thus, the findings he was personally armed in the commission of those offenses are supported by the evidence. It is immaterial that Orbe was in custody at the time the controlled substances and firearm were discovered.
We point out that People v. Balbuena (1992) 11 Cal.App.4th 1136, 1139–1140, 14 Cal.Rptr.2d 640, reaching a contrary conclusion, is distinguishable. There, the defendant was convicted of possessing heroin and cocaine for sale, and found to have been personally armed, after police executing a search warrant in his house found the narcotics in one, and an unloaded firearm in another, of three suitcases on the floor of the living room where defendant and his wife slept and kept their belongings in suitcases and boxes. The suitcases were latched but unlocked and located about 10 or 12 feet, and on the other side of an extended sofa bed, from where the police found defendant lying on the floor as they entered. (Id. at p. 1138, 14 Cal.Rptr.2d 640.) Reversing the finding defendant was personally armed as unsupported by the evidence, Balbuena applied the accepted test of whether the firearm was available for offensive or defensive use and concluded that the evidence showed defendant's firearm ownership or possession, alone, but that “defendant here did not have ‘ready access' to his gun; it was stored, with other of his belongings, in a suitcase.” (Id. at p. 1139, 14 Cal.Rptr.2d 640, quoting Mendival, supra, 2 Cal.App.4th at p. 574, 3 Cal.Rptr.2d 566.) In Orbe's case it is clear there was no aspect of storage in the open placement of the loaded firearm near the salable quantities of narcotics, giving him ready access to the firearm.
FN2. All statutory references are to the Health and Safety Code unless otherwise specified.. FN2. All statutory references are to the Health and Safety Code unless otherwise specified.
3. Miranda v. State of Arizona (1966) 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694.
4. CALJIC No. 2.80 reads:“A person is qualified to testify as an expert if [he][she] has special knowledge, skill, experience, training, or education sufficient to qualify [him][her] as an expert on the subject to which [his][her] testimony relates.“A duly qualified expert may give an opinion on questions in controversy at a trial. To assist you in deciding such questions, you may consider the opinion with the reasons given for it, if any, by the expert who gives the opinion. You may also consider the qualifications and credibility of the expert.“You are not bound to accept an expert opinion as conclusive, but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable.”Penal Code section 1127b provides that if such an instruction is given, “[n]o further instruction on the subject of opinion evidence need be given.”
5. The question here does not involve a need to disregard the expert opinion testimony of the detectives that Orbe possessed the heroin and cocaine in his apartment for sale and that he was selling $300 to $400 of heroin and $50 of cocaine per day. Our statements about disregarding their testimony are made simply as a mode of analysis. This analysis demonstrates the lack of any reasonable probability of a different result had the CALJIC No. 2.80 instruction been given telling the jury that it is not bound by expert opinion testimony but should give the testimony the weight to which it finds the testimony is entitled; and “You may disregard any such opinion if you find it unreasonable.” In other words, if there would have been no probability of a different result by disregarding the expert opinion testimony, as the last sentence of CALJIC No. 2.80 permits, then assuming the jury took this view of the expert opinion evidence as unreasonable had the instruction been given, there also would have been no probability of a different result.
FOOTNOTE. See footnote 1, ante.
6. Lopez discusses People v. Roberts (1953) 40 Cal.2d 483, 491, 254 P.2d 501, which quotes People v. Clemett (1929) 208 Cal. 142, 144, 280 P. 681, both cases cited by Orbe. Roberts states, “ ‘[C]ooperative acts constituting but one offense when committed by the same person at the same time, when combined, charge but one crime and but one punishment can be inflicted.’ [Citation.] The present case resembles the Clemett case in that the only possession and transportation of heroin shown were those necessarily incident to its sale.” (Lopez, supra, 11 Cal.App.4th at p. 848, 14 Cal.Rptr.2d 278.) Lopez cites Supreme Court cases more recent than Roberts recognizing past blurring in the cases of the line between the double conviction prohibition and the double punishment prohibition and applying the remedy of staying punishment rather than reversing convictions. (Lopez, supra, 11 Cal.App.4th at p. 849, 14 Cal.Rptr.2d 278, citing People v. Pearson (1986) 42 Cal.3d 351, 358–359, 228 Cal.Rptr. 509, 721 P.2d 595, and In re Adams (1975) 14 Cal.3d 629, 635, 122 Cal.Rptr. 73, 536 P.2d 473.)A statement in People v. Watterson (1991) 234 Cal.App.3d 942, 945–946, 286 Cal.Rptr. 13, also cited by Orbe, attributes as the reason for the conclusion in Roberts, supra, 40 Cal.2d 483, 491, 254 P.2d 501, the fact that the “possession and transportation were punishable under the same statute and were not defined as separate offenses. Thus the reason the Roberts court held that a defendant could not be convicted of both possession and transportation was ․ because under the statute there was but one offense.” Applying an analysis pertaining to lesser included offenses, not the Roberts–Clemett rule, Watterson held the defendant properly could be convicted of both transportation of cocaine and possession of cocaine for sale, as neither was an offense included in the other. Watterson's description of Roberts thus had no bearing on the Watterson court's conclusion and became dicta in the case. In light of the correct analysis in Lopez, we do not follow the Watterson dicta as Orbe urges us to do.
7. Cases in which review has been granted concerning the issue of the circumstances under which it is appropriate to find a defendant in possession of a controlled substance was armed include People v. Bland (1993) 24 Cal.App.4th 1233, 18 Cal.Rptr.2d 339 (tracking reprint) review granted, 21 Cal.Rptr.2d 355, 855 P.2d 373 (1993); People v. Lepe (H010103–unpub. opn.) review granted 10/14/93 (S034760; # 93–147); People v. Herrera (B068337–unpub. opn.) review granted 10/21/93 (S034831; # 93–153); People v. Shadwick (C013727–unpub. opn.) review granted 10/28/93 (S034887; # 93–161); People v. Romero (H010385–unpub. opn.) review granted week of 1/18/93 (S036356; # 94–11); People v. Vega (H009980–unpub. opn.) review granted week of 2/7/94 (S033188; # 94–26); People v. Amador (1993) 25 Cal.App.4th 1446, 24 Cal.Rptr.2d 542 (tracking reprint) review granted, 28 Cal.Rptr.2d 151, 868 P.2d 906 (1994); People v. Kolerich (1993) 26 Cal.App.4th 665, 25 Cal.Rptr.2d 691 (tracking reprint) review granted, 28 Cal.Rptr.2d 793, 870 P.2d 384 (1994); People v. Allen (F019147–unpub. opn.) review granted week of 4/11/94 (S038241; # 94–52); People v. Ferreira (E010922–unpub. opn.) review granted week of 4/11/94; (S037857; # 94–53); People v. Chanthamany (1994) 22 Cal.App.4th 131, 27 Cal.Rptr.2d 137, review granted, 30 Cal.Rptr.2d 258, 872 P.2d 1183 (1994); and People v. Gillenwater (E010858–unpub. opn.) review granted week of 5/16/94 (S038863; # 94–73).
FOOTNOTE. See footnote 1, ante.
TODD, Acting Presiding Justice.
HUFFMAN and NARES, JJ., concur.