LANDER v. DEPARTMENT OF MOTOR VEHICLES

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Court of Appeal, Fourth District, Division 1, California.

Wilma Joyce LANDER, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.

Civ. 28458.

Decided: January 26, 1984

John F. Weis, Eliseo Z. Sisneros and Cardenas & Fifield, Brawley, for plaintiff and appellant. John Van de Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., and Beth Lori Faber, Deputy Atty. Gen., for defendant and respondent.

 Wilma Joyce Lander challenges the Department of Motor Vehicles' (DMV) suspension of her driving privilege for one year under Vehicle Code section 13352, subdivision (a)(3).1  Section 13352, subdivision (a)(3), (as amended effective Feb. 18, 1982 [Stats.1981, ch. 940] and as amended effective Feb. 18, 1982 [Stats.1982, ch. 53] ) requires DMV to suspend the license of a driver twice convicted of driving under the influence of alcohol where the second offense occurs within five years of the first.   Lander presents three issues on appeal 2 :  her driver's license was wrongfully suspended because section 13352, subdivision (a)(3), is only applicable to violations of “Section 23152 punishable under Section 23165”;  the 1982 amendments may not be retroactively applied to suspend her license;  and DMV's reliance on the 1982 amendments to the Vehicle Code constitutes the application of an ex post facto law.

FACTS

Lander was arrested on April 15, 1980, and convicted on April 22, 1980, for violating Vehicle Code section 23102, subdivision (a).   She was again arrested for driving while under the influence of alcohol on November 6, 1981, and was convicted of that offense on March 25, 1982.   At sentencing for her second conviction Lander was placed on probation for three years, ordered to pay a fine of $565, and required to participate in an alcohol treatment program (also referred to as an SB–38 treatment program, under Health and Safety Code section 11837).

Effective March 25, 1982, DMV suspended Lander's driver's license pursuant to section 13352, subdivision (a)(3).   At the time of Lander's arrests, section 13352.5 provided an exception to mandatory suspension.   Thus before February 18, 1982, participation in a SB–38 program would stay the DMV's mandatory suspension powers.   At the time of Lander's second conviction, after the 1982 amendments, suspension was mandatory unless the driver not only participated in a SB–38 program, but also paid a fine, served 48 hours in jail and was placed on three years' probation with license restrictions which permit only driving to and from work and the treatment program.

Lander's sentence did not include restrictions on the use of her driver's license nor any jail time.   The DMV contends this omission authorized Lander's license suspension.

DISCUSSION

I

Lander contends DMV wrongfully suspended her license because section 13352, subdivision (a)(3), is only applicable to violations of section 23152 “punishable under Section 23165.”  (§ 13352, subd. (a)(3).)   Since her convictions were based on former section 23102 and were not punished by section 23165, she argues section 13352, subdivision (a)(3), does not apply to her.   This two-pronged argument may be resolved by seeking out the legislative intent in the phrase “violation of Section 23152 punishable under Section 23165.”

Section 13352, subdivision (a)(3), provides:  “Except as provided in Section 13352.5 upon conviction or finding of violation of Section 23152 punishable under Section 23165, the privilege shall be suspended for one year․”  (Italics added.)   Section 23165 is the 1982 sentencing section applicable to a second drunk driving conviction within five years.   It reads:

“If any person is convicted of a violation of Section 23152 and the offense occurred within five years of a prior offense which resulted in conviction of a violation of Section 23152 or 23153, or a prior offense which occurred on or after January 1, 1982, which resulted in a conviction of a violation of Section 23103 as specified in Section 23105.5, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred seventy-five dollars ($375) nor more than one thousand dollars ($1,000).   The person's privilege to operate a motor vehicle shall be suspended by the Department of Motor Vehicles pursuant to paragraph (3) of subdivision (a) of Section 13352.”

Section 23165 was enacted by statutes 1981, chapter 940, page 3571, section 32, amended by Statutes 1981, chapter 941, page 3592, section 8, effective date February 18, 1982.   Section 23165 is a renumbered reenactment of section 23102, subdivision (d).  Section 23102, subdivision (d), read:

“Any person convicted under this section of an offense within five years of the date of a prior offense which resulted in a conviction of an offense under this section or Section 23105 shall be punished by imprisonment in the county jail for not less than 48 hours nor more than one year and by a fine of not less than three hundred fifty-five dollars ($355) nor more than one thousand dollars $1,000).   Any person convicted under this section of an offense which occurred within five years of the date of a prior offense which resulted in a conviction of a violation of Section 23101 or 23106 shall be punished by imprisonment in the county jail for not less than five days nor more than one year and by a fine of not less than three hundred fifty-five dollars ($355) nor more than one thousand dollars ($1,000.)”

Section 23102, of which 23102, subdivision (d), was a subsection, was renumbered section 23152 and amended by statutes 1981, chapter 940, section 12.   The penalty sections of 23102 ((c), (d), (e), (f), (g), and (h)) were reenacted and renumbered in separate sections in the same chapter and bill.   Section 23102, subdivision (d), was reenacted as section 23165 with little change.  (Compare § 23102, subd. (d) and reenacted § 23165.)   Certain penalties were increased but otherwise the statute remained essentially the same.

Section 2 of the Vehicle Code is most explicit and relevant on the effect of reenactment and renumbering:

“The provisions of this code, insofar as they are substantially the same as existing provisions relating to the same subject matter, shall be construed as restatements and continuations thereof and not as new enactments.”

Section 9604 of the Government Code although of more general application is equally explicit:

“When the provisions of one statute are carried into another statute under circumstances in which they are required to be construed as restatements and continuations and not as new enactments, any reference made by any statute, charter or ordinance to such provisions shall, unless a contrary intent appears, be deemed a reference to the restatements and continuations.”

Finally, section 9605 of the Government Code provides:

“Where a section or part of a statute is amended, it is not to be considered as having been repealed and reenacted in the amended form.   The portions which are not altered are to be considered as having been the law from the time when they were enacted;  the new provisions are to be considered as having been enacted at the time of the amendment;  and the omitted portions are to be considered as having been repealed at the time of the amendment․” 3

 Does a conviction under section 23102 constitute a conviction under section 23152?   Where a statute, although new in form or number, reenacts an older statute, the new statute is but a continuation of the old.   There is no break in the continuous operation of the old statute and no abolishment of any legal consequences for acts done under the old statute.   This rule especially applies to consolidations, revisions and codifications of statutes.  (In re Dapper, 71 Cal.2d 184, 189, 77 Cal.Rptr. 897, 454 P.2d 905, cert. den. 397 U.S. 905, 90 S.Ct. 906, 25 L.Ed.2d 90.)   Both statutes are substantively similar.   Both provide it is unlawful to drive while under the influence of alcohol.   The conduct which violates either section is the same.   For our purposes, only the statutory numbering of the violation was changed by the 1982 amendment.   Thus, a conviction under former section 23102 constitutes a conviction under present section 23152.   This conclusion however does not result in an affirmance of the trial court decision for sound legal bases for reversal are tendered.

II

Lander next contends the 1982 amendments may not be retroactively applied to authorize suspension of her driver's license.   Both her offenses occurred before the 1982 amendments:  on April 15, 1980, and November 6, 1981.   Her last conviction occurred after the 1982 amendments, on March 25, 1982.

The DMV authority to suspend or revoke Lander's license is not without limit.   It is restrained by a specific exception set forth in section 13352, subdivision (a)(3), “except as provided in Section 13352.5 ․ the privilege shall be suspended for one year.”   The 1982 version of 13352.5 provides the DMV “shall not suspend, pursuant to paragraph (3) of subdivision (a) of Section 13352” if the sentencing court grants probation which includes conditions “specified in subdivision (b) of Section 23166 and the court has restricted the privilege to operate a motor vehicle as provided in that subdivision.”  (Ibid.;  italics added.)

On the date Lander committed her second drunken driving offense (Nov. 6, 1981) Vehicle Code section 13352.5 provided the DMV could not revoke a person's driver's license under section 13352, subdivision (a), if the court had certified to the DMV the person had consented to participate for at least a year and was satisfactorily participating in an SB–38 treatment program.   There was no requirement a restriction be placed on the license before the DMV authority to suspend/revoke was stayed.   Thus had Lander been convicted of driving while under the influence and had she participated in an alcohol treatment program in 1981, and complied with the other conditions of former Vehicle Code section 13352.5 as it then read, the DMV would have been, before February 17, 1982, without authority to revoke her driver's license, even though no restrictions were placed on her driving privilege.

As amended, effective February 18, 1982, however, Vehicle Code section 13352.5 required probation terms in compliance with Vehicle Code section 23166—SB–38 treatment program, a three-year probation, two days in jail, plus a restricted license—rather than participation in an SB–38 treatment program alone if license suspension was to be avoided.   The effect of the 1982 amendment was to require the DMV to impose a suspension unless all the terms of probation were imposed, including those newly enacted.

 It may be readily conceded the DMV procedure for license suspension for driving while under the influence are civil processes and do not constitute punishment in the criminal sense.  (Westmoreland v. Chapman, 268 Cal.App.2d 1, 5, 74 Cal.Rptr. 363;  Fox v. Alexis (1983), 149 Cal.App.3d 780, 197 Cal.Rptr. 616;  see also Spurlock v. Department of Motor Vehicles, 1 Cal.App.3d 821, 828, 82 Cal.Rptr. 42.)   Moreover, the statutory scheme requiring license suspensions for second time drunk driving offenders was created to protect the public.  (Hernandez v. Department of Motor Vehicles, 30 Cal.3d 70, 74, 177 Cal.Rptr. 566, 634 P.2d 917.)   The Hernandez court emphasized this premise, quoting Watson v. Division of Motor Vehicles, 212 Cal. 279, 283, 298 P. 481:

“ ‘The legislative power to regulate travel over the highways and thoroughfares of the state for the general welfare is extensive.   It may be exercised in any reasonable manner to conserve the safety of travelers and pedestrians.   Since motor vehicles are instruments of potential danger, their registration and the licensing of their operators had been required almost from their first appearance.   The right to operate them in public places is not a natural and unrestrained right, but a privilege subject to reasonable regulation, under the police power, in the interest of the public safety and welfare.  [Citation.]  The power to license imports the further power to withhold or to revoke such license upon noncompliance with prescribed conditions.’ ”  (Hernandez, supra, 30 Cal.3d at p. 79, fn. 8, 177 Cal.Rptr. 566, 634 P.2d 917.)

That the “privilege” of driving a motor vehicle is subject to the authority of the DMV to regulate, suspend or revoke a driver's license is beyond a shadow of doubt established law in this state.   Yet the exercise of that authority must be in obedience to, in conformity with the relevant legislative directives as construed by the courts in light of long-accepted rules of statutory construction.

III

 The DMV, in reliance upon the last conviction date, seeks to apply the new laws retroactively to suspend Lander's license.   It is long-settled law “a statute should not be given retroactive effect so as to deprive an individual of a pre-existing right unless the Legislature has clearly expressed its intention to accomplish that end.”  (Henrioulle v. Marin Ventures, Inc., 20 Cal.3d 512, 520, 143 Cal.Rptr. 247, 573 P.2d 465;  italics added;  DiGenova v. State Board of Education, 57 Cal.2d 167, 174, 18 Cal.Rptr. 369, 367 P.2d 865.)

 Lander's right to drive is an important protectable right.   Suspension of a driver's license for statutorily defined cases implicates a protectable property interest for procedural due process purposes.  (Mackey v. Montrym, 443 U.S. 1, 10, 99 S.Ct. 2612, 2617, 61 L.Ed.2d 321.)   In Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90, the United States Supreme Court stated:  “Suspension of issued licenses ․ involves state action that adjudicates important interests of the licensees.”  (Id., at p. 539, 91 S.Ct. at p. 1589.)  “Whether or not retention of a driver's license once issued constitutes a ‘fundamental’ right, it uniformly has been held to be ‘vested.’ ”  (Berlinghieri v. Department of Motor Vehicles, 33 Cal.3d 392, 396, 188 Cal.Rptr. 891, 657 P.2d 383.)   For purposes of the independent judgment review standard, driver's license suspension has an impact on the individual sufficiently vital to compel full and independent review.  (Id., at p. 398, 188 Cal.Rptr. 891, 657 P.2d 383.)

 There is nothing showing the Legislature's expression, much less a clear one, of the intention the 1982 amendments should be given retroactive effect.  (See Johnson v. Alexis, 143 Cal.App.3d 82, 86, 191 Cal.Rptr. 529.)   As a general rule of construction, statutes are not given retroactive effect unless the intent of the Legislature cannot be otherwise satisfied.  “ ‘The Legislature, of course, is well acquainted with this fundamental rule, and when it intends to operate retroactively it uses clear language to accomplish that purpose.’ ”  (Balen v. Peralta Junior College Dist., 11 Cal.3d 821, 828, 114 Cal.Rptr. 589, 523 P.2d 629.)   There is nothing in the new section 13352 stating it is applicable to a second offense occurring before its enactment.   There is also no indication the Legislature intended the last conviction date to determine which statute is applied for suspension.   The date of the last offense, not the last conviction, determines which version of the statute applies.  (Johnson v. Alexis, supra, 143 Cal.App.3d at p. 84, 191 Cal.Rptr. 529.)

 DMV's application of the 1982 amendment to Lander's second drunk driving offense occurring before that date directly controvenes the rule in Henrioulle v. Marin Ventures, supra, 20 Cal.3d 512, 143 Cal.Rptr. 247, 573 P.2d 465.   To suspend her license under the later enactment is to give retroactive effect to the statute.   We conclude in the absence of clear legislative expression to the contrary, amendments to section 13352 must be given prospective effect and do not apply to Lander's case.4

IV

A second and distinct body of laws support our interpretative conclusion section 13352, subdivision (a)(3), is not retroactive.   The 1982 version of section 13352, subdivision (a)(3), mandated DMV license suspension unless the sentencing court in granting probation imposed new conditions on the second-time offender as set forth in section 13352.5, subdivision (a) or (b).   If the sentencing court opts for the (b) conditions, the driver's license must, along with other conditions, be restricted to driving to and from work.   As noted above, such a condition was not imposed on Lander, although she was convicted and sentenced after February 18, 1982.

The sentencing judge imposed sanctions in conformity with section 13352.5 which read in pertinent part in 1981:

“(a) The department may not suspend or revoke, pursuant to subdivision (a), (c), or (e) of Section 13352, the privilege of any person to operate a motor vehicle upon a conviction or finding that the person was driving while under the influence of intoxicating liquor or under the combined influence of intoxicating liquor and any drug, if the court has certified to the department that such person has consented to participate for at least one year, and is participating, in a manner satisfactory to the court, in a public or private program for the supervision of such persons and the treatment of their problem drinking or alcoholism pursuant to the provisions of Article 5 (commencing with Section 11850) of Chapter 1 of Part 2 of Division 10.5 of the Health and Safety Code.”  (Stats.1978, ch. 954, § 2, p. 2954.)

The effect of this statute was to prohibit suspension or revocation by the DMV of a driver's license if the trial court certified the defendant's consent to and participation in an alcoholic treatment program.  (See Health & Saf. Code, § 11837, Stats.1979, ch. 679, p. 2121.)   No other condition of probation or sentence was required to stay the DMV's suspension/revocation power.   The trial court complied with the law in effect at the time of Lander's arrest.   The more onerous probationary burden (compliance with all the conditions specified in 1982 in subd. (b) of § 23186) did not become effective and legally imposable until 1982 when Lander's trial and conviction took place.

The plain and clear legislative intent as expressed in the statute in effect in 1981 (as well as in 1982) was to give the sentencing court the authority and duty to determine whether a defendant should be granted the opportunity to preserve the driving license, or to refuse to follow the treatment approach and send the matter on the DMV for license suspension.

The DMV would reverse this most reasonable construction of the statute and require the sentencing court to retroactively apply a law not in effect when the offense was committed.

The intent of the Legislature is equally plain and clear on this further point.   Until the effective date of the amended statute, the twice-convicted driver would not lose the driving privilege if he complied with Health and Safety Code section 11837/Vehicle Code section 13352.5 as the section read in 1981.   The rational conclusion is:  Before the 1982 amendment, the Legislature intended there be no DMV suspension if the specified condition was fulfilled.   To authorize a DMV license suspension after trial court imposition of the SB–38 program for a 1981 offense would approve an act in excess of the authority given to the DMV by the unambiguous language of the statutes in force when Lander committed the second offense.  (See Watson v. Division of Motor Vehicles, supra, 212 Cal. 279, 287, 298 P. 481;  People v. Armstrong, 100 Cal.App.2d Supp. 852, 856, 224 P.2d 490.)

It may be assumed Vehicle Code section 13352 is not a penal statute and is well within the lawful regulatory powers of the DMV.5  While ex post facto principles may not apply to DMV regulation—because its actions are technically not punative 6 —the statutory relationship between the sentencing court and the DMV is constitutionally questionable because the DMV's civil authority to suspend/revoke rests upon the court's imposition of ex post facto sanctions.   An ex post facto act by a court does not ipso facto attain constitutional validity when used by the DMV as the basis for license revocation.   The DMV revocation/suspension authority in this case rests upon the sentencing court's failure to impose an ex post facto penal sanction.   The DMV would suspend Lander's license because the court did not assign a condition of probation which it could not, if the legislative intent was to be honored, legally impose.

Analogous is the Supreme Court decision of Watson v. Division of Motor Vehicles, supra, 212 Cal. 279, 287, 298 P. 481, where the court stated:

“It follows that since the judgment was predicated on an act of negligence committed before the act went into effect, and since the act adds a new penalty for that negligence, under well-settled principles, the act can have no application to acts of negligence committed before its passage.   Any other interpretation would violate the well settled rule in reference to the prospective operation of such statutes.”  (Italics added.)

V

A more explicit approach suggests the DMV's interpretation borders on unconstitutionality because the statute as applied by the DMV denies equal protection of the law to Landers.  (U.S. Const., XIV Amendment;  Calif. Const., art. I, §§ 7.)   To adopt the DMV retroactive application would permit two persons similarly situated vis-a-vis the laws against repeat drunken driving to suffer different consequences:  one retains the driver's license, one may have that right suspended or revoked by the DMV.   The privilege would depend solely upon the date when the conviction-sentencing took place.   If before February 17, 1982, the license would be retained if SB–38 treatment program was used;  if after February 17, 1982, the license would be forfeited despite the SB–38 program.   This permits the exercise of a right (to drive) by one while refusing it to another of like qualifications.  (D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 16, 112 Cal.Rptr. 786, 520 P.2d 10.)   The statute as DMV construes it would not apply equally to all persons within a reasonable classification.  (Lelande v. Lowery, 26 Cal.2d 224, 232, 157 P.2d 639.)

 Proper statutory construction should avoid both the ex post facto and denial of equal protection pitfalls.   To this end the statute should be given meaning and be applied according to constitutional principles if this can reasonably be done.  (People v. Superior Court, 10 Cal.2d 288, 298, 73 P.2d 1221;  Associated Home Builders etc., Inc. v. City of Livermore, 18 Cal.3d 582, 598, 135 Cal.Rptr. 41, 557 P.2d 473.)   Such a rule of construction compels the conclusion of nonretroactivity of section 13352, subdivision (a)(3).

The foregoing reason and law compel this court to conclude there is no statutory authority for the DMV to impose a penalty predicated on an act committed before the effective date of the 1982 version of section 13352, subdivision (a)(3).

Judgment reversed.

FOOTNOTES

1.   All statutory references are to the Vehicle Code unless otherwise specified.Effective January 1, 1982, section 13352 read in pertinent part:“(a) The department shall, immediately suspend or revoke the privilege of any person to operate a motor vehicle upon receipt of a duly certified abstract of the record of any court showing that the person has been convicted of a violation of Section 23152 or 23153 ․  For the purposes of this section, suspension or revocation shall be as follows:“․“(3) Except as provided in Section 13352.5, upon a conviction or finding of a violation of Section 23152 punishable under Section 23165, the privilege shall be suspended for one year․”  (Italics added.)

2.   Although Lander's one-year license suspension ended on March 25, 1983, the case is not moot for two reasons.   It poses issues of public interest “ ‘capable of repetition, yet avoiding review’ ” (Ferrara v. Belanger, 18 Cal.3d 253, 259, 133 Cal.Rptr. 849, 555 P.2d 1089) and requires interpretation of new amendments to statutes possessing a paucity of authority and interpretation.  (Conservatorship of Buchanan, 78 Cal.App.3d 281, 286, 144 Cal.Rptr. 241.)Lander makes two other arguments:  She argues it is a violation of the doctrine of separation of powers for the DMV to mete out a sanction not applied by the sentencing court and it is a violation of equal protection and due process not to have the same sanctions applied by both the penal system and the DMV regulatory system.   Landers cites no authority for these novel constitutional theories and the bald assertions are unpersuasive standing alone.

3.   An analysis of legislative history (Stats.1981, ch. 940, § 45) confirms present section 23152 was but a renumbered version of former section 23102:  “SEC. 45.(a) The provisions of Sections 2, 6, 7 and 10 of the Vehicle Code expressly apply to the provisions of this act, and, further, for any recidivist or enhancement purposes, reference to an offense by section number is a reference to the provisions contained in that section, insofar as they are renumbered without substantive change, and those provisions shall be construed as restatements and continuations thereof and not as new enactments.“(b) Any reference in the provisions of the Vehicle Code to a prior offense of Section 23152 shall include a prior offense under Section 23102 or 23105, as those sections read prior to January 1, 1982.“(c) Any reference in the provisions of the Vehicle Code to a prior offense of Section 23153 shall include a prior offense under Section 23101 or 23106 as those sections read prior to January 1, 1982.“(d) The provisions of this section are declaratory of existing law.”   (Italics added.)

4.   In this respect we disagree with the recent case of Fox v. Alexis, supra, 149 Cal.App.3d 780, 197 Cal.Rptr. 616.   There, the court found the language of the statutes “clearly implies” retroactive intent based on the use of the word conviction rather than offense.   Where retroactive application of a statute affects important substantive rights, the law requires the Legislature use clear, express language to that effect.   The portion of the statute (§ 13352, subd. (a)(5)) used in Fox is “immediately ․ upon receipt of a duly certified abstract of the record of any court showing that the person has been convicted ․ suspension or revocation shall be as follows:  ․ [u]pon a conviction ․”  (Id., fn. 2.)   Fox gives too much import to the term “conviction” for it is used here only to describe the administrative procedure used for suspension:  essentially the suspension only follows proof of conviction.   If suspension followed a mere accusation, our law would not permit such a sanction before due process.   The section cited by Fox is one of implementation not substantive retroactivity.

5.   Some cases have viewed suspension of licenses as punishment but although we may be sympathetic to this approach, it is not necessary to draw an artificial line between punishment and regulation to resolve this case.In Hough v. McCarthy, 54 Cal.2d 273, 5 Cal.Rptr. 668, 353 P.2d 276, the California Supreme Court recognized suspension of a driver's license is punishment by stating:  “[T]here is an element of punishment involved when an administrative agency regulates conduct by means of suspending licenses ․”  (Id., at p. 282, 5 Cal.Rptr. 668, 353 P.2d 276.)In People v. O'Rourke, 124 Cal.App. 752, 13 P.2d 989, the court recognized the penal nature of driver's license suspension:  “The revocation or suspension of the operator's license is not the imposition of an additional penalty to the judgment of conviction.   It is part and parcel thereof ․”  (Id., at p. 759, 13 P.2d 989.)(See also Curtin v. Department of Motor Vehicles, 123 Cal.App.3d 481, 486, 176 Cal.Rptr. 690.)   The Legislature itself refers to license suspension as punishment.   Amended section 23165 (Stat.1982, ch. 53, § 31, p. 253) provides as punishment a one-year license suspension pursuant to section 13352, subdivision (a)(3).

6.   An ex post facto law is one which makes an act criminal which was not so at the time it was performed (see U.S. Const., art. I, § 9, cl. 3;  Cal. Const., art. I, § 9.);   or which increases punishment;  or which, by necessary operation and its relation to the offense, or its consequences, alters the situation of a party to his disadvantage.   (Conservatorship of Hofferber, 28 Cal.3d 161, 180, 167 Cal.Rptr. 854, 616 P.2d 837.)   The ex post facto doctrine applies to laws of punitive nature.  (Flemming v. Nestor, 363 U.S. 603, 613, 80 S.Ct. 1367, 1374, 4 L.Ed.2d 1435;  Conservatorship of Hofferber, supra.)

STANIFORTH, Acting Presiding Justice.

WIENER and WORK, JJ., concur.