The PEOPLE, Plaintiff and Respondent, v. Terry Lee CROW, Defendant and Appellant.
Defendant and his common-law wife, Teri Acosta, were jointly convicted of welfare fraud. In addition, Ms. Acosta was convicted of three counts of perjury for signing three false welfare applications. The theory of the prosecution was that defendant was liable as an aider and abettor of Ms. Acosta in defrauding the Lake County Department of Social Services.
Defendant was sentenced to prison for three years—the middle term of two years plus a one-year enhancement for causing a loss in excess of $25,000. He was also ordered to pay restitution of $31,807. He appeals.
On September 23, 1987, defendant and Teri Acosta filled out a rental application for one of the several rental cabins owned by the Cobb Mountain Spring Water Company, located on the water company's property at 16771 Forest Lake Drive in Lake County. The couple and their three children had been staying with another cabin resident for a month or two before that. Defendant and Ms. Acosta rented cabin number 7.
In October 1987, Teri Acosta applied to the Lake County Department of Social Services for AFDC (Aid to Families with Dependent Children) benefits and food stamps for herself and three children, transferring her eligibility from another county. Ms. Acosta gave her address as 7 Forest Lake Drive, and declared under penalty of perjury that she was eligible for aid due to the absence of the children's father, Terry Crow. On the basis of Ms. Acosta's statements, AFDC benefits and food stamps were granted.
Soon thereafter, on November 6, 1987, defendant obtained a post office box in his own name giving a separate address: number 5, Forest Lake Drive. In fact, there was no cabin number 5; that cabin had burned down years previously.
Defendant and Ms. Acosta lived together in cabin number 7 with their children. They attended school functions and Little League games as a family. Defendant was employed by a construction company in 1987 and 1988, and in early 1989 he began working at Cobb Mountain Spring Water Company. He was fired in May 1990. Defendant received unemployment benefits during his periods of unemployment. While defendant worked for the water company, Ms. Acosta often brought defendant's dinner to him at the plant. She also picked up his paycheck on occasion. One of defendant's paychecks was endorsed by Ms. Acosta.
In January 1989 and again in January 1990, Ms. Acosta signed an annual redetermination form again claiming eligibility for assistance because of the continued absence of her children's father. Each time, Teri Acosta was asked to provide a rental receipt. Teri Acosta normally paid the rent on the cabin, but on two occasions in the spring of 1990 defendant paid the rent and received a receipt. He then returned to the office and asked the manager to reissue the receipt in Ms. Acosta's name.
In July 1990 the Lake County Department of Social Services began an investigation to determine whether defendant was living in Acosta's home. On July 24, 1990, an investigator arrived at cabin number 7 about 8 a.m. and found defendant seated at the kitchen table eating breakfast with the children. The investigator asked defendant if he knew his wife and children were on aid. Defendant replied that he did. The investigator further asked if defendant knew he was required to report his presence in the household. Again defendant replied that he did. The investigator also asked if defendant knew he was required to report his income. Defendant replied, “No.”
In August 1990, a welfare worker asked defendant and Ms. Acosta to come to the office to determine whether defendant should be added to their food stamps. During the interview defendant signed a statement that he was not living with Ms. Acosta and claiming he lived at cabin 5 in Whispering Pines. Based on that statement, Ms. Acosta's benefits were continued.
Whispering Pines is a summer resort that is closed after Labor Day each year. An adjoining resort, Cobb Mountain Lodge, does have a few occupied cabins. The investigator saw no signs of occupancy of cabin number 5 when he checked it in the summer of 1990, but in December 1990 a new stove pipe had been installed and firewood had been stacked outside.1 However, there was no sign of anyone using the stove.
From November 1987 to December 1990 Ms. Acosta received a total of $29,336 in AFDC benefits and $3,593 in food stamps. Two of the AFDC checks paid to Ms. Acosta, one in 1988 and one in 1990, were deposited into defendant's bank account. An eligibility worker from the county testified that if defendant was living in the home and Ms. Acosta failed to report it, Ms. Acosta would not have been entitled to AFDC benefits and would have been entitled to only $1,122 in food stamps, for a net overpayment of $31,807. The eligibility worker also testified that had Ms. Acosta and defendant applied together for benefits, they would have been eligible for AFDC benefits of $12,102 and food stamps of $1,122 based on defendant's unemployment. The net overpayment, then, would have been $19,705.
The manager of the bar at Cobb Mountain Lodge testified that defendant moved into a cabin there in 1988 and stayed there most of the time after the summer of 1989.
I. Sufficiency of the Evidence
Defendant first argues that the evidence is insufficient to sustain his conviction as an aider and abettor of Teri Acosta's welfare fraud. We cannot agree.
A person may be convicted as an aider and abettor if, with the knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, the defendant by act or advice aids, promotes, encourages or instigates the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 556–561, 199 Cal.Rptr. 60, 674 P.2d 1318.)
Here, there can be no doubt that defendant was aware of Ms. Acosta's welfare fraud. He deposited two of the AFDC checks into his own bank account. He admitted to the investigator that he knew Ms. Acosta was on welfare and that his presence in the household should be reported. Defendant's procurement of a separate post office box giving a different address shortly after Ms. Acosta applied for aid strongly suggests an intent to create the appearance of separate residences. Moreover, defendant's acts of requesting reissued rental receipts in Ms. Acosta's name supports an inference that defendant was attempting to facilitate Ms. Acosta's welfare fraud. And, finally, his conduct after the investigation began reflects a consciousness of guilt: his false statement that he was living at Whispering Pines; his purchase of a stove pipe to create the appearance of occupancy at cabin number 5 at the Cobb Mountain Lodge.
In People v. Woods (1986) 177 Cal.App.3d 327, 330, 222 Cal.Rptr. 868, the court upheld the defendant's conviction of aiding and abetting his wife's welfare fraud where, among other things, the defendant deposited some of the checks into his own bank account and provided fictitious mailing addresses for the checks. We similarly find substantial evidence here to support the jury's verdict. The evidence permits the inference that defendant actively participated in a scheme to conceal his presence in the home knowing that Ms. Acosta's welfare benefits were premised on his absence from the home.
Defendant contends the jury should have been instructed on the misdemeanor provision for welfare fraud set forth in Welfare and Institutions Code section 11482. The contention is unsound.
Section 10980 of the Welfare and Institutions Code makes it a misdemeanor to obtain aid in an amount less than $400 and a felony if the amount obtained exceeds $400.2 Clearly the amount obtained here far exceeded $400. In fact the jury found that defendant had taken over $25,000. (See Part III, post.)
Section 11482, upon which defendant relies, does create a misdemeanor offense. But in 1984 the statute was amended by the Legislature (in the same bill that enacted section 10980), to refer to section 10980, which now provides the punishment for all welfare offenses.3 (People v. Camillo (1988) 198 Cal.App.3d 981, 988, 244 Cal.Rptr. 286.) This legislative action was in response to the Supreme Court's holding in People v. Gilbert (1969) 1 Cal.3d 475, 82 Cal.Rptr. 724, 462 P.2d 580, that prosecution of welfare fraud as a felony under the theft statute was precluded by the specific misdemeanor statute, section 11482. The legislative response was to create a two-tiered offense: a misdemeanor if the aid obtained is less than $400, a felony if the aid exceeds $400. (People v. Camillo, supra, 198 Cal.App.3d at p. 990, 244 Cal.Rptr. 286.) As previously noted, the amount of aid far exceeded $400, making the misdemeanor provision inapplicable.
Penal Code section 12022.6 provides for a one-year enhancement when the defendant takes or destroys property causing a loss to the victim exceeding $25,000. Here, Ms. Acosta obtained over $32,000 in AFDC benefits and food stamps. Yet, there was undisputed evidence that Ms. Acosta would have been eligible for AFDC benefits and food stamps even with defendant living in the home, causing a net overpayment of $19,705.4 The question before us, then, is which of the two is the determinative amount, for purposes of the enhancement.
The purpose of the enhanced punishment for an enhanced taking is to deter large-scale crime (People v. Kellett (1982) 134 Cal.App.3d 949, 959, 185 Cal.Rptr. 1) and to exact punishment commensurate with the seriousness of the crime (People v. Bates (1980) 113 Cal.App.3d 481, 483, 169 Cal.Rptr. 853). Thus, recovery of the stolen property is irrelevant to determining the amount of the victim's loss. For purposes of the enhancement, the “loss” is the amount dispossessed, even temporarily, regardless of the victim's ultimate out-of-pocket loss. In People v. Kellett, supra, 134 Cal.App.3d 949, 959, 185 Cal.Rptr. 1, for example, the court held the defendant's temporary taking of a truck and trailer was sufficient to justify the enhancement since the victim was at least temporarily dispossessed of an item valued at over $25,000. (See also People v. Bates, supra, 113 Cal.App.3d 481, 483–484, 169 Cal.Rptr. 853 [recovery of stolen gold nuggets]; People v. Ramirez (1980) 109 Cal.App.3d 529, 539, 167 Cal.Rptr. 174 [recovery of stolen bank funds]; cf. United States v. Westmoreland (10th Cir.1990) 911 F.2d 398 [ultimate recovery of stolen truck did not affect the offense level under federal sentencing guidelines].) 5
In part, the courts' reasoning has been that recovery of the stolen property is no defense to the crime; hence, it is no defense to the enhancement. (People v. Ramirez, supra, 109 Cal.App.3d at pp. 539–540, 167 Cal.Rptr. 174.) That principle applies as well to welfare fraud. Restitution is no defense (People v. Camillo, supra, 198 Cal.App.3d at p. 994, 244 Cal.Rptr. 286), nor is eligibility for aid under some other ground (People v. Carlson (1977) 76 Cal.App.3d 112, 116–118, 142 Cal.Rptr. 638). Accordingly, we uphold the imposition of the enhancement. Defendant and Ms. Acosta dispossessed the county of over $32,000. That they were actually eligible for a certain sum of benefits, upon proper application, is irrelevant to determining the seriousness of the crime.
Defendant was ordered to pay $31,807 in restitution to Lake County. Defendant raises two arguments concerning the restitution order.
A. County As A Victim
First, defendant argues that restitution is inappropriate in this case because Lake County does not qualify as a victim. We reject the argument.
There is no question that a county may be the victim of a crime. (People v. Dale (1966) 239 Cal.App.2d 634, 639, 49 Cal.Rptr. 253, cert. den. 386 U.S. 12, 87 S.Ct. 887, 17 L.Ed.2d 704 [theft of money from state agency]; People v. Diamondstein (1919) 42 Cal.App. 490, 491, 183 P. 679 [theft of electric motor from county].) Several courts have held that the government may not recover its indirect losses, but have said in dictum that the government may be the beneficiary of restitution “if it has incurred actual loss due to the crime, as in the instance of tax evasion or theft of government property․” (People v. Baker (1974) 39 Cal.App.3d 550, 559, 113 Cal.Rptr. 248 [no reparations for costs of prosecution]; accord, People v. Burnett (1978) 86 Cal.App.3d 320, 322, 150 Cal.Rptr. 126 [no reimbursement for costs of extradition].)
In People v. Narron (1987) 192 Cal.App.3d 724, 237 Cal.Rptr. 693, the court held that Lake County could be the beneficiary of restitution imposed as a condition of probation. “We first note as a general proposition that restitution is not necessarily limited to persons. Neither Penal Code section 1203.1 nor section 1203.04 defines the term ‘victim.’ However, the policies of these provisions favor a definition which includes the government where it suffered loss flowing from a defendant's criminal conduct. Including the government as a potential ‘victim’ accords with the court's discretion to employ probation conditions which ensure ‘that amends ․ be made to society for the breach of the law, ․’ (Pen.Code, § 1203.1.) Moreover, the concept of restitution embodies not only the notion that people who suffer loss as a result of criminal activity should be compensated for those losses (Cal. Const., art. I, § 28, subd. (b)), but also a perception of the value of restitution as a ‘deterrent to future criminality’ (People v. Lent , supra, 15 Cal.3d  at p. 486 [124 Cal.Rptr. 905, 541 P.2d 545] ), and ‘to rehabilitate the criminal.’ (People v. Richards , supra, 17 Cal.3d  at p. 620 [131 Cal.Rptr. 537, 552 P.2d 97].) Both aims are furthered by imposing a restitution condition in appropriate cases whether or not the victim is an individual. We therefore agree with the dictum that ‘[t]he government may be the beneficiary of [restitution] if it has incurred actual loss due to the crime, as in the instance of tax evasion or theft of government property, ․’ (People v. Baker (1974) 39 Cal.App.3d 550, 559 [113 Cal.Rptr. 248]; People v. Burnett (1978) 86 Cal.App.3d 320, 322 [150 Cal.Rptr. 126].)” (Footnote omitted.) (Id., at p. 732, 237 Cal.Rptr. 693.) 6
We employ similar reasoning with regard to Government Code section 13967. That statute authorizes restitution when the defendant is denied probation and the victim has suffered economic loss.7 The statute does not specify whether the government qualifies as a beneficiary of restitution.8 Accordingly, as in Narron, we must examine the purposes of the restitution statute. We find the purposes of section 13967 to be identical to the purposes of the statutes involved in Narron—to compensate those who suffer loss from criminal acts, to deter future criminality, and to rehabilitate the criminal. Those purposes are equally served by construing section 13967 to permit the government to be the beneficiary of restitution when it has incurred actual property loss from the crime.
The cases relied on by defendant are not applicable. In People v. Blankenship (1989) 213 Cal.App.3d 992, 999–1000, 262 Cal.Rptr. 141, and People v. Williams (1989) 207 Cal.App.3d 1520, 1523, 255 Cal.Rptr. 778, the courts held that an insurance company did not qualify as a victim of the crime for purposes of direct restitution because its losses stemmed from its contractual obligations. People v. Miller (1989) 216 Cal.App.3d 758, 762–763, 265 Cal.Rptr. 77, held that a special county investigative bureau did not qualify as a victim. Those cases are readily distinguishable from the present case in which Lake County suffered actual economic losses directly resulting from the welfare fraud.
B. Ex Post Facto
Prior to 1990, Government Code section 13967 provided for restitution up to a maximum of $10,000. Effective January 1, 1990, the statute was amended to authorize restitution to the victim in the amount of the actual loss, without the $10,000 ceiling. The parties agree that to apply the amendment of section 13967 to acts occurring prior to January 1, 1990, violates the constitutional prohibition against ex post facto laws, and the parties agree that the order of restitution issued herein is erroneous. The parties disagree, however, as to the maximum limit on restitution applicable here.
The Attorney General argues that although the restitution amount for acts committed from 1987 to 1989 is limited to $10,000, the actual losses sustained in 1990 ($9,873) are also recoverable, bringing the restitution amount to $19,873. Defendant argues, however, that because his acts were completed before 1990, the maximum restitution amount is $10,000, even though the county may have continued to sustain losses after January 1, 1990.
Defendant's argument is not supported by the record. Defendant's fraudulent conduct continued into 1990. In the spring of 1990 defendant twice asked for reissued rent receipts in Ms. Acosta's name. In August 1990, defendant submitted a false statement to the Department of Social Services claiming he was not living with Teri Acosta. Based on that statement, Ms. Acosta's benefits were continued. Defendant also purchased a stove pipe in December 1990 to create the appearance he was living in the cabin at Whispering Pines. We think restitution may properly be awarded for losses in 1990. (See People v. Flaherty (1990) 223 Cal.App.3d 1139, 1143, 273 Cal.Rptr. 29; People v. Keehley (1987) 193 Cal.App.3d 1381, 1385–1386, 239 Cal.Rptr. 5.)
But we are not convinced that the measure of the county's loss advanced by the Attorney General—the amount of benefits paid to Ms. Acosta—is correct. We have already concluded in Part III, ante, that for purposes of the enhancement the county's loss is the amount of benefits paid to Ms. Acosta. For purposes of restitution, however, we reach a different result. In contrast to the case law interpreting section 12022.6, holding that recovery of stolen property is irrelevant to determining the amount of the victim's loss, case law interpreting section 13967 holds that a defendant may not be ordered to pay restitution to a victim whose property was returned and who accordingly suffered no loss. (People v. Rivera (1989) 212 Cal.App.3d 1153, 1162, 261 Cal.Rptr. 93.) Nor can a defendant be ordered to pay restitution for the amounts for which the victim had been reimbursed by her insurance carrier. (People v. Williams, supra, 207 Cal.App.3d at p. 1524, 255 Cal.Rptr. 778.) The courts have reasoned that section 13967 permits restitution to the victim only for the amount of the victim's actual losses.
In computing the amount of restitution ($31,807) the trial court used the computation given by the eligibility worker, subtracting from the total benefits and food stamps received ($32,929) the amount of food stamps Ms. Acosta was eligible for even with defendant in the home ($1,122). Because the couple's eligibility for food stamps was taken into consideration, it is puzzling why the couple's eligibility for $12,102 in AFDC benefits was not also considered.
The prosecutor did not dispute that defendant and Ms. Acosta were eligible for both AFDC benefits and food stamps, for a net overpayment of $19,705. The prosecutor himself elicited such testimony on direct examination of the eligibility worker. In closing argument, the prosecutor compared what defendant and Ms. Acosta actually received to what they were eligible to receive and argued Ms. Acosta therefore had a motive to lie on the welfare applications. He also argued that defendant's intent to facilitate Ms. Acosta could be inferred from the fact that “Together, they profited over $19,000․” Yet, at the same time, the prosecutor argued that because defendant and Ms. Acosta did not in fact apply for benefits together, the $19,705 “has no basis here.”
We recognize that for purposes of establishing guilt of welfare fraud, the People need only prove the recipient was ineligible under the statute upon which aid was sought and obtained. Hence, Ms. Acosta's eligibility on some other ground is no defense to the crime of welfare fraud. (People v. Carlson, supra, 76 Cal.App.3d at p. 117, 142 Cal.Rptr. 638; People v. La Motte (1979) 92 Cal.App.3d 604, 611, 155 Cal.Rptr. 5, disapproved on another point in People v. Sims (1982) 32 Cal.3d 468, 488, 186 Cal.Rptr. 77, 651 P.2d 321.) Nevertheless, we conclude that in determining the county's actual loss, for purposes of restitution, the trial court must deduct from the amount paid the amount Ms. Acosta was eligible to receive. We remand for a determination of that amount.9
The order of restitution is reversed and the matter is remanded for further proceedings. In all other respects, the judgment is affirmed.
I respectfully dissent from that part of the majority opinion affirming the one-year enhancement under Penal Code section 12022.6 for property loss in excess of $25,000. The undisputed evidence shows that, while appellant and Ms. Acosta obtained nearly $33,000 in total AFDC benefits and food stamps, of that amount they were legitimately entitled to AFDC benefits of $12,102 and food stamps of $1,122, resulting, as the majority observes, in “a net overpayment of $19,705.”
Penal Code section 12022.6 imposes an enhancement of a taking of property where “the loss exceeds” $25,000. (Emphasis added.) Thus, as I read the statute, it is not the total value of property obtained by the defendant, but the total value of the “loss” incurred by the victim, which triggers the enhancement. “The statute by its terms draws a distinction between the taking and the loss. It does not by its terms require the taking of $25,000, it requires an intentional taking, damage or destruction of property in the commission of any felony, ‘and the loss exceeds' $25,000.” (People v. DeLeon (1982) 138 Cal.App.3d 602, 606, 188 Cal.Rptr. 63.) In contrast to the cases cited by the majority, in which enhancements were upheld for temporary dispossession of the victim's property, subsequently recovered, appellant and Ms. Acosta could not have dispossessed the victim of money which they were themselves legally eligible to receive. (Cf. People v. Kellett (1982) 134 Cal.App.3d 949, 958–959, 185 Cal.Rptr. 1; People v. Bates (1980) 113 Cal.App.3d 481, 483–484, 169 Cal.Rptr. 853; People v. Ramirez (1980) 109 Cal.App.3d 529, 539–540, 167 Cal.Rptr. 174.) As to that portion of the benefits there was never a loss—temporary or otherwise—to the victim. I think there cannot be a “loss” within the meaning of section 12022.6 of property which the victim was obligated by law to relinquish to the defendant.
Accordingly, I would reverse the section 12022.6 enhancement for lack of supporting evidence. In all other respects, I concur in the majority opinion and would affirm the judgment.
1. In December 1990 defendant bought stove pipe.
2. Subdivision (c) of section 10980 provides as follows:“(c) Whenever any person has, by means of false statement or representation or by impersonation or other fraudulent device, obtained or retained aid under the provisions of this division for himself or herself or for a child not in fact entitled thereto, the person obtaining such aid shall be punished as follows: ¶ (1) If the total amount of such aid obtained or retained is four hundred dollars ($400) or less, by imprisonment in the county jail for a period of not more than six months, a fine of not more than five hundred dollars ($500), or by both such imprisonment and fine. ¶ (2) If the total amount of such aid obtained or retained is more than four hundred dollars ($400), by imprisonment in the state prison for a period of 16 months, two years, or three years, a fine of not more than five thousand dollars ($5,000), or by both such imprisonment and fine; or by imprisonment in the county jail for a period of not more than one year, or a fine of not more than one thousand dollars ($1,000), or by both such imprisonment and fine.”
3. Section 11482 provides: “Any person other than a needy child, who willfully and knowingly, with the intent to deceive, makes a false statement or representation or knowingly fails to disclose a material fact to obtain aid, or who, knowing he or she is not entitled thereto, attempts to obtain aid or to continue to receive aid to which he or she is not entitled, or a larger amount than that to which he or she is legally entitled, is guilty of a misdemeanor, except as specified in Section 11482.5 and shall be subject to prosecution under the provisions of Chapter 9 (commencing with Section 10980) of Part 2.”
4. Welfare and Institutions Code section 11250 provides three grounds for granting AFDC benefits: (1) the death, incapacity or incarceration of a parent; (2) the unemployment of a parent, or (3) the continued absence of a parent from the home. Although the record amply supports the finding that Ms. Acosta was not eligible under the third ground, the undisputed expert evidence established her eligibility for $12,102 in benefits under the second.
5. The only case offering a hint of support to defendant is People v. DeLeon (1982) 138 Cal.App.3d 602, 606, 188 Cal.Rptr. 63, in which the defendant stole a car unaware that the victim had stored within it valuable coins and diamonds. The court upheld the enhancement, reasoning that the statute distinguishes between the taking and the loss: the statute does not require an intent to take $25,000; it requires only an intentional taking as long as the loss to the victim exceeds $25,000. That reasoning suggests that the determinative question is the amount lost, not the amount the defendant intended to take. But DeLeon's focus on the victim's loss, rather than the defendant's intent, only begs the question here. DeLeon does not contradict the case law which holds that the amount of the victim's loss is the amount dispossessed, albeit temporarily.
6. In Narron the trial court ordered the defendant to pay the county's costs of disposal of the defendant's drug laboratory. The appellate court ruled that even an indirect victim could be a restitution beneficiary, but that aspect of the Narron decision was later called into question by the holding in People v. Wardlow (1991) 227 Cal.App.3d 360, 369–370, 278 Cal.Rptr. 1, that restitution is limited to direct victims.
7. Government Code section 13967, subdivision (c), provides in pertinent part: “(c) In cases in which a victim has suffered economic loss as a result of the defendant's criminal conduct and the defendant is denied probation, in lieu of imposing all or a portion of the restitution fine, the court shall order restitution to be paid to the victim․ Notwithstanding subdivision (a), restitution shall be imposed in the amount of the losses, as determined. The court shall order full restitution unless it finds clear and compelling reasons for not doing so, and states them on the record. A restitution order imposed pursuant to this subdivision shall identify the losses to which it pertains, and shall be enforceable as a civil judgment. The making of a restitution order pursuant to this subdivision shall not affect the right of a victim to recovery from the Restitution Fund in the manner provided elsewhere, except to the extent that restitution is actually collected pursuant to the order. Restitution collected pursuant to this subdivision shall be credited to any other judgments for the same losses obtained by the victim against the defendant arising out of the crime for which the defendant was convicted. [¶] Restitution ordered pursuant to this subdivision shall, to the extent possible, be of a dollar amount that is sufficient to fully reimburse the victim, or victims, for all determined economic losses incurred as the result of the defendant's criminal conduct․ [¶] For any order of restitution made pursuant to this subdivision, the defendant shall have the right to a hearing before the judge to dispute the determination made regarding the amount of restitution.”
8. Section 13960 defines “victim” as a “person” who resides in California and “sustains injury or death as a direct result of a crime․” That definition does not exclude a county welfare agency. (People v. Gregg (1992) 3 Cal.App.4th 794, 4 Cal.Rptr.2d 720.)
9. The expert testimony revealed only the gross amount of eligibility: $12,102 in AFDC benefits and $1,122 in food stamps. The record does not reflect what portion pertains to 1990.
DOSSEE, Associate Justice.
STEIN, J., concurs.