IN RE: Stephen Joseph GANDOLFO

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Court of Appeal, Third District, California.

IN RE: Stephen Joseph GANDOLFO, Conservatee. James E. HEIM, Public Guardian and Conservator, Appellant, v. Stephen Joseph GANDOLFO, Respondent.

Civ. 20088.

Decided: September 30, 1982

Adrian Kuyper, County Counsel, Daniel J. Didier, Deputy County Counsel, Santa Ana, for appellant. Robert N. Chargin, Public Defender, Jeffrey L. Hirschfield, Deputy Public Defender, for respondent.

This is an appeal from a final order of the Superior Court of San Joaquin County granting habeas corpus relief (Pen.Code, § 1507;  Cal.Rules of Court, rule 50) and directing appellant James E. Heim, the Orange County Public Guardian, to place respondent Stephen J. Gandolfo, his conservatee, in a “suitable” facility less restrictive than Stockton State Hospital, in which he had been placed pursuant to provisions of the Lanterman-Petris-Short (LPS) Act.  (Welf. & Inst.Code, §§ 5000 et seq.)   We consider whether it was proper to grant the writ in the face of an order of the Superior Court of Orange County, entered six weeks prior to the order here, directing Heim to place Gandolfo at Stockton State Hospital.   We conclude, following Browne v. Superior Court (1940) 16 Cal.2d 593, 107 P.2d 1, that it was not and vacate the order.


On March 16, 1979, Heim was appointed as Gandolfo's conservator pursuant to Welfare and Institutions Code section 5350, based upon a determination that Gandolfo was “gravely disabled.” 1  Heim was empowered “to require [that Gandolfo] receive treatment related specifically to remedying or preventing the recurrence of the conservatee's being gravely disabled;  [and] ․ [¶] ․ to require [him] to be detained in a facility providing treatment for the developmentally disabled;  ․”  (Welf. & Inst.Code, §§ 5357, subd. (d);  5358.)   Shortly afterward, Gandolfo, then 23 years of age, was placed in Stockton State Hospital.

After Gandolfo sought release from the hospital under former Health and Safety Code sections 38120 and 38121 (repealed by Stats.1977, ch. 1252, § 352, oper. July 1, 1978, and replaced by Welf. & Inst.Code, §§ 4800 and 4801 [added by Stats.1977, ch. 1252, § 550, oper. July 1, 1978] ), the San Joaquin County Superior Court on November 14, 1979, granted habeas corpus relief, on the basis of section 4801, but delayed Gandolfo's discharge for one month to permit Heim to determine Gandolfo's eligibility for commitment under Welfare and Institutions section 6500 as a “mentally retarded person ․ [who] is a danger to himself or others.”   At Heim's request, the court set aside the order and scheduled a new hearing.   At that hearing, the court denied Gandolfo's request for relief, treating it as one under Welfare and Institutions Code sections 5275 and 5276, which relate to 14-day certifications for intensive treatment of persons found to be a danger to others or to themselves, or to be gravely disabled, as a result of mental disorder or impairment by chronic alcoholism.  (Welf. & Inst.Code, § 5250.)

On April 23, 1980, after Gandolfo again requested his release, the San Joaquin County Superior Court granted the habeas corpus relief on the ground that he was “not gravely disabled to the extent that he need be maintained in a locked institution.”   It ordered that he be released from Stockton State Hospital within 30 days for possible placement in Palm Springs or Santa Barbara, where his parents separately resided.   Gandolfo was then returned to Orange County to await a hearing on the reappointment of Heim as his conservator for another year.

On June 4, 1980, the Orange County Superior Court again appointed Heim as Gandolfo's conservator.   It found Gandolfo both “gravely disabled” and “developmentally disabled,” and also found Stockton State Hospital to be the “most suitable placement” for him.   Based on this finding, it ordered Heim to “place the conservatee at Stockton State Hospital.”   After Gandolfo sought his release for the third time, the San Joaquin County Superior Court again granted the requested habeas corpus relief, on August 25, 1980.   It found that Gandolfo's “condition [was] such that there [was] no reason he ha[d] to stay in such a restrictive environment as Stockton State Hospital;  that he [was] not gravely disabled to the extent that it necessitate[d] his remaining in a locked facility,” that “[h]is behavior [was] not dangerous to himself or others in the [preceeding] six weeks,” that “[h]is father [was] willing to try to handle him,” and, finally, that “Stockton State Hospital [was] not the proper place for him.”   The court recommended that placement be near his father.   After we denied Heim's petition for a writ of mandate or prohibition (3 Civ. 19963), this appeal followed.



We agree with Heim that Browne v. Superior Court, supra, 16 Cal.2d 593, 107 P.2d 1, is dispositive of the case.   In Browne, the Superior Court of Santa Barbara County adjudged an elderly woman incompetent and appointed one of her sons as the guardian of her person and estate.   Some time later, following medical advice, she went to live in a convalescent home in San Francisco.   Another son encouraged her to return to Santa Barbara but her physician opposed the move as dangerous and her guardian asked the superior court for instructions.   It directed the guardian to keep his mother in San Francisco.   When the brother's application for habeas corpus in the San Francisco Superior Court was granted and the case set for hearing, the guardian sought and obtained a writ of prohibition preventing the trial court from proceeding.   (Id., at pp. 595–597, 107 P.2d 1.)   The court referred to the “familiar proposition that where several courts have concurrent jurisdiction over a certain type of proceeding, the first one to assume and exercise such jurisdiction in a particular case acquires an exclusive jurisdiction.”   (Id., at p. 597, 107 P.2d 1.)   In a guardianship proceeding, the court observed, the trial court retains jurisdiction to supervise the guardian until he is discharged.  (Accord Guardianship of Tulley (1978) 83 Cal.App.3d 698, 705, 146 Cal.Rptr. 266.)  “In carrying out his duties of administration he acts under the authority and supervision of the court which appointed him, must render accountings, may petition for instructions, and is subject to liability or removal for misconduct.   The jurisdiction of the court in this respect is a continuing one, and though no motion, petition or other such incidental proceeding may be pending at any particular time, the court still has jurisdiction over the guardianship.   No other court, we believe, has power to interfere with that continuing control over the guardian;  no other court could receive and approve his accounting, or instruct him as to his duties.   The San Francisco Superior Court cannot, in this habeas corpus proceeding, enter into any consideration of the propriety of the medical or other care of Mrs. Browne, her residence, the extent of supervision over her visitors, mail or other personal activities, or any other matters connected with her guardianship.   The allegation that she desires to return to Santa Barbara has no legal significance under the facts recited;  no more significance, indeed, than her personal preference as to doctors, drugs or treatment.   Under the law her guardian must choose her place of residence (Prob.Code, [§] 1500) and the Santa Barbara court has fully considered all matters pertaining thereto.   These are all wholly within the jurisdiction of the Santa Barbara court, and are beyond the scope of any proceeding in habeas corpus.”  (Browne v. Superior Court, supra, 16 Cal.2d at p. 598, 107 P.2d 1.)   In the court's view, “the matters sought to be determined [in the proceeding], namely, the residence and method of treatment of the ward, [were] exclusively within the jurisdiction of the Santa Barbara court, and outside the scope of the writ of habeas corpus.”  (Id., at p. 599, 107 P.2d 1.)

In response to an argument that requiring her to live in San Francisco and placing limits upon her right to receive mail and visitors amounted to an “ ‘unreasonable restraint upon her personal liberties' ” cognizable in a habeas corpus proceeding (ibid.), the court “assume[d] that if the guardian of the incompetent herein, without instruction or authorization from the court, took the ward away from her home to an unsatisfactory place of residence, or unjustifiably confined or imprisoned her so as to deny her the pleasures of visiting her family or friends, or deprived her of the opportunity to receive medical care by preventing her from seeing a physician, these restraints might, in the absence of another adequate remedy, be the subject of inquiry on habeas corpus.   The guardian has the custody and care of the ward, but the ward is not his prisoner.   He may limit her activities in a reasonable manner, for her own benefit, but cannot, without good reason, deny her such freedom as is essential to her welfare.”  (Emphasis added.)  (Id., at pp. 600–601, 107 P.2d 1.)   This was in stark contrast to the facts of the case before it and the court concluded:  “The guardian is not arbitrarily confining or limiting the freedom of the ward upon his own initiative.   He is acting under the instructions of the court having jurisdiction of the guardianship, and the court gave those instructions after the fullest possible hearing, and upon ample and practically conclusive testimony that the particular course of conduct prescribed was for the best interests of the ward.   The court may have been wrong then, and it may be wrong now.   For the error it may have committed then, appellate review was possible.   For the error it may be committing now, an application to that court, which has continuing jurisdiction of the guardianship, is still possible.   Evidence as to the condition, the needs and the desires of the ward may be presented to that court on her behalf, and the fairness of the hearing or the correctness of the decision may be reviewed on appeal.   But in the present circumstances there is no possible ground for habeas corpus.   There is no illegal restraint whatever.   Everything has been done in accordance with the lawful orders of a court with jurisdiction to make them, upon evidence which fully supports the orders.   If the guardian were to permit what the application demands, he would be acting in violation of the orders of the Santa Barbara court, and would be answerable to that court for his misconduct.”  (Id., at p. 601, 107 P.2d 1.)

 We think this case is analytically indistinguishable from Browne.   Here, the Orange County Superior Court appointed Heim as Gandolfo's conservator and authorized Gandolfo's placement in a state hospital.   Subsequently, on his reappointment as guardian, it gave Heim a specific direction regarding Gandolfo's placement, just as the Santa Barbara court did in Browne.2  The San Joaquin County court's subsequent granting of habeas corpus flew directly in the face of the Orange County court's determination as to a proper placement of Gandolfo, a matter we have concluded was “exclusively within the jurisdiction of the [Orange County] court, and outside the scope of the writ of habeas corpus.”  (Browne v. Superior Court, supra, 16 Cal.2d at p. 599, 107 P.2d 1.)

In Browne, the Supreme Court was concerned with preserving intact the appointing court's “continuing control” over the guardian.  (Id., at p. 598, 107 P.2d 1.)   It was not for another court to correct its errors;  the proper course for the ward to pursue her grievance was by direct appeal or by further applications to present evidence to the court of her conditions and desires in the exercise of its “continuing jurisdiction.”

The LPS Act, in addition to establishing safeguards on the initial appointment of a conservator,3 provides procedures for conservatees to challenge the validity and conditions of their conservatorships.   Conservatorships under the LPS Act terminate automatically after one year, at the end of which conservators must petition for reappointment with supporting medical evidence.  (Welf. & Inst.Code, § 5361.)   Conservatees are entitled to rehearings as to their status every six months.  (Welf. & Inst.Code, § 5364.) 4  Section 5358.3 5 gives them the right to contest, also every six months, the rights denied them under section 5357 and the powers granted the conservator under section 5358.

 This is not to say that habeas corpus relief may never be had by a conservatee under the LPS Act.   Like the court in Browne, we “assume” that an unreasonable denial of “such freedom as is essential to [a conservatee's] welfare” might be a proper subject of inquiry on habeas corpus.   Thus, in Henreid v. Superior Court (1976) 59 Cal.App.3d 552, 130 Cal.Rptr. 892, the court suggested that an LPS Act conservatee would be entitled to habeas corpus relief if “unreasonable consequences should ensue” because of the limitations of the statutory review mechanisms.  (Id., at p. 558, 130 Cal.Rptr. 892;  see also Conservatorship of Munson (1978) 87 Cal.App.3d 515, 520, 152 Cal.Rptr. 12 [habeas corpus relief available under Pen.Code, § 1473 for improper or illegal hospitalization].)  This accommodation of the appointing court's authority and the conservatee's liberty interest finds a parallel in other cases where the validity of the confinement is not questioned, as the validity of the conservatorship order itself is not questioned here;  in those cases habeas corpus has been used “to protect the fundamental basic rights of prisoners” though they remain confined.  (In re Riddle (1962) 57 Cal.2d 848, 851, 22 Cal.Rptr. 472, 372 P.2d 304.)   The placement of concededly gravely disabled conservatees in the least restrictive setting possible consistent with their needed treatment is unquestionably an important legislative policy.6  However, “[i]t is often said that habeas corpus is not a proper remedy to review errors which could be raised on appeal or by other appropriate remedies ․”  (Witkin, Cal.Criminal Procedure (1963) § 796, p. 768.)   Here, the provisions of the LPS Act for challenging one's status as a conservatee and the powers of the conservator, as well as the right to appeal from the original conservatorship, appear to be well suited, in ordinary circumstances, to enforcing the right to an appropriately nonrestrictive environment.   The precise degree of restriction appropriate to a patient may change from day to day or week to week and a rule holding habeas corpus the proper mechanism for keeping up with those changes could only invite a hopeless flood of cases which would wreak havoc on the “continuing jurisdiction” of appointing courts.   The availability of review every six months under the LPS scheme will ordinarily insure that any change in the conservatee's condition or other circumstance affecting the appropriateness of the restrictions placed on him is recognized within a reasonable time.   Nevertheless, it may be that, in extraordinary circumstances, the statutory review procedures may be shown to be inadequate and to result in “unreasonable consequences” greatly detrimental to the conservatee.   No such showing was made here, however.   The trial court found merely that Stockton State Hospital was “not the proper place” for Gandolfo.   More than this is required to justify interference with the continuing jurisdiction of the Orange County Superior Court.


 Heim also claims that the general habeas corpus provisions of Penal Code section 1473 7 have been superseded by provisions of the Welfare and Institutions Code.   We disagree.

 Notwithstanding the inclusive language of this statute, Heim strenuously asserts that the Legislature has manifested an intention that Welfare and Institutions Code sections 5361, 5364 and 5358.3 (see ante, fns. 4 and 5) take the place of habeas corpus for “gravely disabled” conservatees under the LPS Act.   This he infers from its enactment of provisions in the act and in related legislation which explicitly sanction habeas corpus as the proper method of testing the validity of a confinement of persons certified under the LPS Act for 14-day “intensive treatment” (Welf. & Inst.Code, § 5275), temporary LPS conservatees (§ 5353), developmentally disabled patients (§§ 4800, 4801), and “[a]ny person who has been committed” to a state hospital for the mentally disabled (§ 7250).   Heim argues that the Legislature's explicit recognition of habeas corpus in these settings indicates that the lack of such an explicit reference in the statutes governing “gravely disabled” conservatees means that the procedures therein set out were intended to be the exclusive means of review.   We disagree.

 To read the lack of an express reference to the availability of habeas corpus to these LPS conservatees as excluding it completely would operate as an implied repeal of Penal Code section 1473.   Repeals by implication are not favored and are recognized only when there is “no rational basis for harmonizing” the statutes in question.  (In re White (1969) 1 Cal.3d 207, 212, 81 Cal.Rptr. 780, 460 P.2d 980.)   Since the act does not explicitly preclude habeas corpus, the review procedures set out in the act and section 1473 must be recognized as concurrently available (subject to any limitation, discussed infra, which the very provision of such review procedures may place on the availability of habeas corpus relief).   Moreover, we do not find Heim's inference compelling.   The two provisions in the LPS Act cited by him as sanctioning applications for habeas corpus relief—Welfare and Institutions Code sections 5275 (pertaining to persons certified for 14-day “intensive treatment[s]”) and 5353 (pertaining to temporary conservatees, who can be detained in such status for 30 days pending a hearing on whether they are “gravely disabled” (§ 5352.1))—are addressed to situations in which the normal review mechanisms are inadequate and inappropriate;  since habeas corpus is the only means available to such persons to challenge their confinement, it is hardly surprising that provisions have been enacted which prescribe the manner of making such applications.   Nothing about them compels the conclusion that, where the LPS review procedures are applicable, habeas corpus may not ever be available as well.   The same can be said of the other two statutes cited by Heim as authorizing review by habeas corpus.  Welfare and Institutions Code sections 4800 and 4801 (relating to the developmentally disabled) and section 7250 (relating to persons “committed” to state hospitals for the mentally disordered) are parts of different statutory schemes which lack the review procedures set out in the LPS Act.   The fact that, in the absence of such procedures, the Legislature felt it necessary to specify the manner in which applications for habeas corpus relief should be made does not require us to say that, where such review procedures have been provided by statute, the failure to explicitly provide that habeas corpus might be available in addition thereto means that it is not available.   We are required, in light of the broad language of Penal Code section 1473, to presume the contrary.


 Last, Gandolfo has suggested that he is entitled to habeas corpus relief under either Welfare and Institutions Code sections 4800 and 4801 or section 7250.   We disagree.   Although he was found by the Orange County Superior Court to be “developmentally disabled,” he was not “admitted or committed to a state hospital ․ as a developmentally disabled patient” (§ 4800;  emphasis added), but rather was confined in the hospital pursuant to a conservatorship based on the fact that he was “gravely disabled as a result of mental disorder” (§ 5250).  Section 7250, part of a chapter pertaining to state hospitals for the mentally disordered, provides that “[a]ny person who has been committed is entitled to a writ of habeas corpus ․”  Prior to 1967, former Welfare and Institutions Code section 6620 so provided as to “[a]ny person in custody as an insane or incompetent person.”  (As amended by Stats.1955, ch. 111, § 8, p. 574;  repealed by Stats.1967, ch. 1667, § 36.5, p. 4107.)  Section 7250 was enacted in 1967 (added by Stats.1967, ch. 1667, § 40, p. 4146) as part of the same legislation which contained the original LPS Act.   Its use of the term “committed” is therefore significant since the act carefully distinguishes between persons “judicially committed” (Welf. & Inst.Code, §§ 6250, 6300 [commitment of mentally disordered sex offenders], § 6500 [commitment of mentally retarded persons dangerous to themselves or others];  § 6825 [referring to commitment of mentally disordered persons charged with crimes] ) and “admitted” or “voluntary” wards, in which latter category conservatees are included (Welf. & Inst.Code, §§ 5002 [prohibiting judicial commitment of mentally disordered persons], § 6000.)   Accordingly, section 7250 does not apply to Gandolfo.

The order granting habeas corpus relief is reversed and vacated.


1.   Welfare and Institutions Code section 5350 provides:  “A conservator of the person, of the estate, or of the person and the estate may be appointed for any person who is gravely disabled as a result of mental disorder or impairment by chronic alcoholism․”  Section 5008, subdivision (h)(1), defines the term “gravely disabled” to include “[a] condition in which a person, as a result of a mental disorder, is unable to provide for his basic personal needs for food, clothing, or shelter․”

2.   Gandolfo points out that more than a year passed from Heim's original appointment in March of 1977 and his second in June 1980.   He suggests that the Orange County court's jurisdiction was thus broken by the “automatic [ ]” termination of the first conservatorship and the June 1980 direction to place him in Stockton State Hospital is actually akin to the San Francisco habeas corpus ruling in Browne in that it was inconsistent with the San Joaquin County court's prior grant of relief.   It is clear, however, that the pertinent statutes do not contemplate the extinguishment of the appointing court's continuing jurisdiction merely by a temporary interruption in the chain of conservatorship.  Welfare and Institutions Code section 5361, for example, provides for extension of a conservatee's confinement after the termination date whenever reappointment proceedings have not been completed.   Similarly, under section 5363, the court may ratify the “good faith” acts of a conservator which occurred after the expiration of the one-year period “to provide continuity of authority in those cases where the conservator did not apply in time for reappointment.”

3.   “The professional person in charge of an LPS evaluation or treatment facility may recommend the appointment of a conservator for any person he determines is gravely disabled as a result of a mental disorder and who is unwilling or incapable of voluntarily accepting treatment ( [Welf. & Inst.Code,] §§ 5350, 5352).   A comprehensive investigation report containing all relevant information pertaining to the patient's medical, psychological, social, family, vocational and financial condition, must be prepared before the hearing (§ 5354).   Conservatorship will be recommended only when there are no suitable alternatives available (§ 5354).   The citation and a copy of the petition must be served upon the proposed conservatee at least 10 days before the hearing date (Prob.Code, § 1754).   Where appropriate, the petition must specifically request that the proposed conservatee be deprived of [enumerated rights, such as the right to enter contracts, to drive, or to refuse medical treatment].  (§ 5357)  [¶]  Within 30 days from the date of the filing of the petition, a hearing must be held and the proposed conservatee must have counsel appointed within five days after the date of the petition (§ 5365).   The proposed conservatee, on the advice of counsel, can demand a court or jury trial on the issue of grave disability, thereby waiving the hearing, or he can proceed with the hearing and be bound by the decision of the court (§ 5350, subd. (d) ).”  (Fns. omitted.)  (Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 282–283, 139 Cal.Rptr. 357.)   Upon the appointment of a conservator, the conservatee may be placed in an approved facility pursuant to court order.   Outpatient treatment is encouraged.  (§ 5358.6.)   Family placement is preferred;  if the conservatee cannot remain at home, he must be placed in the least restrictive setting consistent with needed treatment, as close as possible to his home or that of a relative.  (§ 5358.)

4.   Welfare and Institutions Code section 5364 provides:  “At any time, the conservatee may petition the superior court for a rehearing as to his status as a conservatee.   However, after the filing of the first petition for rehearing pursuant to this section, no further petition for rehearing shall be submitted for a period of six months.   If the conservatorship is terminated pursuant to this section, the court shall, in accordance with Section 707.7(c) of the Elections Code, notify the county clerk that the person's right to register to vote is restored.”

5.   Welfare and Institutions Code section 5358.3 provides:  “At any time, a conservatee or any person on his behalf with the consent of the conservatee or his counsel, may petition the court for a hearing to contest the rights denied under Section 5357 or the powers granted to the conservator under Section 5358.   However, after the filing of the first petition for hearing pursuant to this section, no further petition for rehearing shall be submitted for a period of six months.  [¶]  A request for hearing pursuant to this section shall not affect the right of a conservatee to petition the court for a rehearing as to his status as a conservatee pursuant to Section 5364.   A hearing pursuant to this section shall not include trial by jury.   If a person's right to vote is restored, the court shall so notify the county clerk pursuant to Section 707.7(c) of the Elections Code.”

6.   Welfare and Institutions Code section 5358 (as amended by Stats.1980, ch. 681, § 2) reflects this policy:  “(a) When ordered by the court after the hearing required by this section, a conservator appointed pursuant to this chapter shall place his or her conservatee in the least restrictive alternative placement, as designated by the court.   Such placement may include a medical, psychiatric, nursing, or other state-licensed facility, or a state hospital, county hospital, hospital operated by the Regents of the University of California, a United States government hospital, or other nonmedical facility approved by the State Department of Mental Health or an agency accredited by the State Department of Mental Health, or in addition to any of the foregoing, in cases of chronic alcoholism, to a county alcoholic treatment center.“(b) A conservator shall also have the right, if specified in the court order, to require his or her conservatee to receive treatment related specifically to remedying or preventing the recurrence of the conservatee's being gravely disabled, or to require his or her conservatee to receive other medical treatment unrelated to remedying or preventing the recurrence of the conservatee's being gravely disabled which is necessary for the treatment of an existing or continuing medical condition.   Except in emergency cases in which the conservatee faces loss of life or serious bodily injury, no surgery shall be performed upon the conservatee without the conservatee's prior consent or a court order specifically authorizing such surgery obtained pursuant to Section 5358.2.“(c) If the conservatee is not to be placed in his or her own home or the home of a relative, first priority shall be to placement in a suitable facility as close as possible to his or her home or the home of a relative.   For the purposes of this section, suitable facility means the least restrictive residential placement available and necessary to achieve the purposes of treatment.   At the time that the court considers the report of the officer providing conservatorship investigation specified in Section 5356, the court shall consider available placement alternatives.   After considering all the evidence the court shall determine the least restrictive and most appropriate alternative placement for the conservatee.   The court shall also determine those persons to be notified of a change of placement.“If requested, the local mental health director shall assist the conservator or the court in selecting a placement facility for the conservatee.   When a conservatee who is receiving services from the local mental health program is placed, the conservator shall inform the local mental health director of the facility's location and any movement of the conservatee to another facility.“(d) The conservator may transfer his or her conservatee to a less restrictive alternative placement without a further hearing and court approval.   In any case in which a conservator has reasonable cause to believe that his or her conservatee is in need of immediate more restrictive placement because the condition of the conservatee has so changed that the conservatee poses an immediate and substantial danger to himself or herself or others, the conservator shall have the right to place his or her conservatee in a more restrictive facility or hospital.   Notwithstanding Section 5328, if the change of placement is to a placement more restrictive than the court-determined placement, the conservator shall provide written notice of the change of placement and the reason therefor to the court, the conservatee's attorney, the county patient's rights advocate and such other persons designated by the court pursuant to subdivision (c).”

7.   Penal Code section 1473 provides:  “Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint.”

BLEASE, Associate Justice.

EVANS, Acting P. J., and REYNOSO, J.*, concur.