PEOPLE v. MALDONADO

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

The PEOPLE of the State of California, Plaintiff and Respondent and Cross-Appellant, v. Phillip G. MALDONADO and Randall A. Maldonado, Defendants and Appellants and Respondents on People's Appeal.

Crim. 17133.

Decided: March 26, 1985

Morreale & Loyd and Peter J. Morreale, Lafayette, for defendant, appellant and respondent Randall Anthony Maldonado. Ralph R. Loyd, Huntington Beach, for defendant, appellant and respondent Phillip Gregory Maldonado. Cecil Hicks, Dist. Atty. (Orange), Michael R. Capizzi, Asst. Dist. Atty. and William W. Bedsworth, Deputy Dist. Atty., and John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., A. Wells Petersen and Raquel M. Gonzalez, Deputy Attys. Gen., for plaintiff, respondent and cross-appellant.

OPINION

A jury convicted defendants Phillip Gregory Maldonado and Randall Anthony Maldonado of kidnaping (Pen.Code, § 207),2 six counts of forcible rape while acting in concert with another (§§ 261, subd. (2), and 264.1), five counts of forcible oral copulation while acting in concert with another (§ 288a, subd. (d)), and four counts of forcible sodomy while acting in concert with another (§ 286, subd. (d)).  The defendants present a plethora of arguments.   The prosecution appeals the sentences, arguing the trial court failed to impose mandatory consecutive sentences.   We affirm the judgment of guilt but reverse and remand for resentencing.

The Maldonados' crimes were all perpetrated against one victim, 14 year old Dawn P., a deaf mute,3 over a span of approximately four and a half hours.   At about 7:30 in the evening the Maldonados and codefendant William Aguilera 4 walked out of the back door of a bar in Cypress after drinking beer.   Dawn P. was there, waiting for friends before entering a nearby pizza parlor.   The defendants accosted her, offering her beer and drugs.   Dawn was frightened.   The defendants pushed her to their car and placed her in the back seat.

Gregory 5 drove to a liquor store.   Dawn reached for the door handle, but Randall dissuaded her.   Gregory and Aguilera forced Dawn to drink some of the whiskey and beer they had purchased.

Gregory drove to the beach and parked.   Randall forced Dawn to give him her necklace but permitted her to keep her hearing aid.   The defendants walked her to a place with tall bushes and dirt, holding her up because she was dizzy.   Randall removed Dawn's blouse and tube top and forced her to lie down on the ground.   Dawn said she wanted to go home.   Randall choked her and shook his fist.   While Randall held Dawn down, Aguilera removed her pants.

Aguilera raped her while Gregory forced her to orally copulate him.   Dawn was crying.   Randall continued to hold her while Gregory raped her and Aguilera forced her to orally copulate him.   Randall then raped Dawn and orally copulated her while he and Gregory held her down.   All three defendants also sodomized Dawn and bit her breasts.

Randall gave Dawn her sweater and pants and she got dressed.   She was pulled to the car and placed in the back seat.   Gregory drove to a dumpster where Dawn relieved herself as the defendants peered down at her.   They drove to an alley where Gregory and Aguilera got out, talked to several gang members, came back to the car and parked.

They left the car but returned shortly with one of the gang members.   Randall forced Dawn to remove her pants and the gang member raped Dawn in the car while the defendants talked to the others.   The defendants returned and drove to yet another location where there were several gang members.   Gregory and Aguilera got out of the car, talked to the gang members and returned.   Gregory or Aguilera pulled Dawn out of the car and left her with one of the gang members after Randall had forced her to remove her pants.   This gang member raped Dawn while the defendants spoke with the others.   Afterward, Randall gave Dawn her pants and placed her in the car.

Gregory drove to a truck selling Mexican food.   The Maldonados got out of the car.   Aguilera ordered Dawn to orally copulate him and, when she refused, he pulled her hair, struck her nose and forced her to orally copulate him.   Aguilera then asked her age and Dawn said she was 14 years old.   The Maldonados returned with food and the defendants ate.

Gregory continued driving, ultimately parking near a shack and trailer.   While Gregory and Aguilera walked through a gate, Randall took Dawn by the hand to a garden so she could relieve herself again.   He walked her back to the car and, after the defendants talked and forced her to go into the shack, Randall forced Dawn to remove her pants and the defendants left her while a male between 17 and 20 years old raped her.

The defendants walked Dawn to the trailer.   Inside was an older man who took Dawn to a restroom by a stable and walked her back.   Once inside the trailer again, the defendants put her on the bed and took off her clothes.   Randall held Dawn while Gregory sodomized her and Aguilera orally copulated her.   Randall and Aguilera sodomized Dawn.   Each of the defendants then orally copulated her and sodomized her again.   Dawn told someone she needed to use the restroom.   The older man took her again.

When they returned to the trailer, the defendants were gone.   Dawn told the older man she wanted to go home.   He said he would take her home after he put her on the bed.   He raped Dawn and bit her breasts.   He then drove her to an area near her house.   Dawn was hysterical and crying when she arrived at home.   She immediately said she had been raped.   The police were called.

In essence, the defense was consent.   Both Maldonados testified Dawn accompanied them willingly.   They also testified she engaged in sexual activity with them willingly, but had a substantially different account of the number, frequency and nature of the sexual acts.   In other words, they maintained several of the acts never occurred.

I–VII *

VIII

The People attack the sentences, which were the same for each brother.   On one count of rape in concert with another, the court imposed the mid term of seven years (§ 264.1);  on one count of forcible sodomy in concert, the court imposed the lower term of five years (§ 286, subd. (d)), to be served consecutively;  the court stayed imposition of sentence on all the other counts pursuant to section 654.23  The People contend the trial court had a duty to impose several more mandatory consecutive sentences by virtue of section 667.6, subdivision (d).   But before reaching that issue, we note two other aspects of the sentences.

 As we recently concluded under similar circumstances in People v. Eberhardt 165 Cal.App.3d 1151, 211 Cal.Rptr. 280, when a non-probationary sentence is imposed the court cannot simply stay imposition of counts or enhancements.   We relied in part on People v. Cheffen (1969) 2 Cal.App.3d 638, 641–642, 82 Cal.Rptr. 658.  “ ‘In the trial below ․ the jury returned a guilty verdict as to each of the five counts charged.   However, the trial judge pronounced judgment and sentence was imposed on defendant only for the two counts of kidnaping.   As to the remaining three counts, two of robbery and one of burglary, defendant was not informed of the disposition of these counts or the punishment imposed therefor.  [Citation.]  Upon conviction it is the duty of the court to pass sentence on the defendant and impose the punishment prescribed.  (Pen.Code, § 12;  In re Sandel [ (1966) ] 64 Cal.2d 412, 415, 50 Cal.Rptr. 462, 412 P.2d 806;  People v. Morrow [ (1969) ] 275 Cal.App.2d 507, 514, 80 Cal.Rptr. 75;  see People v. Rodriquez [ (1963) ] 222 Cal.App.2d 221, 226, 34 Cal.Rptr. 907.)   Pursuant to this duty the court must either sentence the defendant or grant probation in a lawful manner;  it has no other discretion.  (People v. Superior Court [(Kasparek) (1962) ] 202 Cal.App.2d 850, 855, 21 Cal.Rptr. 178;  People v. Morrow, supra;  see Stephens v. Toomey [ (1959) ] 51 Cal.2d 864, 338 P.2d 182.)   Where sentence is imposed upon multiple convictions the trial court, in order to avoid the double punishment forbidden by Penal Code section 654, may stay execution of the less severely punishable offense, pending an appeal or during service of any term fixed by the Adult Authority for the more severely punishable offense, the stay to become permanant [sic] at the completion of service of any sentence for the more severely punished offense.  [Citations.]  [¶] Accordingly, in the present case it was the duty of the trial judge to pronounce judgment on the robbery and burglary counts.’  [Citation.]”  (People v. Eberhardt, supra, 165 Cal.App.3d 1151, 211 Cal.Rptr. 280.)

 In section 12, the Legislature has declared:  “The several sections of [the Penal] Code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the Court authorized to pass sentence, to determine and impose the punishment prescribed.”  (Emphasis added.)   The probation statutes provide a specific exception to this general rule.   However, the Legislature has provided no similar exception with respect to section 654.   The trial court was not empowered to simply suspend imposition of sentence, purportedly pursuant to section 654.   (People v. Eberhardt, supra, 165 Cal.App.3d 1151, 211 Cal.Rptr. 280.)   The sentence of the Maldonados is unauthorized by the Penal Code.24

IX

 Each of the Maldonados was convicted of 16 sex offenses, and one count of kidnaping, involving the same victim.   With respect to the sex offenses, People v. Perez (1979) 23 Cal.3d 545, 550–554, 153 Cal.Rptr. 40, 591 P.2d 63, and a host of court of appeal decisions establish section 654 has no application.  “Perez held that Penal Code section 654 does not preclude consecutive sentences of defendant for multiple sex offenses.  [Citation.]  The Supreme Court held:  ‘[W]e find no basis to depart from the cases relied on by the People and no basis under those cases for applying section 654 in this case.   None of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other.   We therefore conclude that section 654 does not preclude punishment for each of the sex offenses committed by the defendant.’   [Citation.]  [¶] The court also noted that ‘A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.’  [Citation.]”  (People v. Sanchez (1982) 131 Cal.App.3d 718, 728–729, 182 Cal.Rptr. 671.)  “It can no longer be argued that where there are multiple sexual acts performed upon a single victim, albeit within a short space of time, that each act does not comprise a distinct and separate violation and punishment.  [Citations.]”  (People v. Clem (1980) 104 Cal.App.3d 337, 346, 163 Cal.Rptr. 553;  see also People v. Madden (1981) 116 Cal.App.3d 212, 218, 171 Cal.Rptr. 897.)

We previously concluded the trial court erred in the manner it used section 654, i.e., by suspending imposition of sentence.   We also conclude the application of section 654 itself contravened the holding of Perez and its progeny.   Resentencing is required for this reason as well.25

X

 The People contend longer sentences for each Maldonado are mandated by section 667.6, subdivision (d).26  That section requires full separate and consecutive terms for sex offenses “involv[ing] the same victim on separate occasions.”   In essence, the People contend the sexual assaults at each location constituted a “separate occasion.”   Hence, according to their argument, consecutive sentences were required in a number equal to the number of locations where a series of assaults occurred.27  The trial court clearly did not follow section 667.6, subdivision (d), as it imposed only one low term consecutive sentence.   If the People are correct, the trial court imposed an illegal sentence.   Resolution of the issue turns on what constitutes a “separate occasion.”

Several cases are instructive, but not dispositive.   In People v. Fleming (1983) 140 Cal.App.3d 540, 189 Cal.Rptr. 619, the defendant was convicted of 11 offenses including seven sex crimes.   The court held both subdivisions (c) and (d) of section 667.6 applied.   In determining when subdivision (d) applied, the court said:  “We can discern at most three ‘separate occasions' on which offenses were committed—two oral copulations in concert and one forcible rape at the house, two oral copulations in concert in the motel early in the evening, and one forcible oral copulation and one forcible rape in the motel several hours later.   To characterize sexual acts occurring within a few moments or even a few seconds of each other, such as those at the house, as offenses committed on ‘separate occasions,’ is to rob that term of any meaning.   A basic rule of statutory interpretation is that courts should avoid a construction which renders a part of a statute ‘surplusage.’  [Citation.]  Applying subdivision (d) to acts committed within minutes of each other leaves no room for permissive imposition of consecutive sentences under subdivision (c).   Consequently, we conclude that some intervening events or passage of time must occur between sexual offenses before subdivision (d) is applicable.”  (Id., at p. 545, 189 Cal.Rptr. 619;  see also People v. Sutton (1985) 163 Cal.App.3d 438, 209 Cal.Rptr. 536.)

However, other cases place different constructions on this statutory language.   In People v. Reeder (1984) 152 Cal.App.3d 900, 200 Cal.Rptr. 479, the prosecution argued there were “separate occasions” because one act of rape during which the defendant achieved climax was followed by another act of rape.   The Reeder court rejected the application of subsection (d).  “We reject such a strained interpretation of the clear language of section 667.6.   A sexual climax, as these nauseating facts reveal, does not necessarily bring a respite from the sexual abuse.   Section 667.6, by its terms, necessarily recognizes and presupposes that multiple violent sexual offenses may be committed against one victim on the same ‘occasion.’   Since the discretionary subdivision (c) applies ‘whether or not the crimes were committed during a single transaction,’ the subdivision (d) phrase ‘separate occasions' must, as a matter of statutory harmony, refer to some event disconnected from the first sexual transaction.   That phrase must also be distinguished from a single transaction within the meaning of the statutory proscription against multiple punishment.   The proscription of section 654 against multiple punishment ‘applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction.’  [Citation.]  For purposes of multiple sex offenses, a transaction is deemed divisible (and each offense punishable) when ‘[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other.’  [Citation.]  In contrast, the test for consecutive punishment under section 667.6, subdivision (d), is not whether a single transaction is divisible but is rather whether the offenses occurred on occasions disjoined from each other.   The Legislature's use of the phrase ‘separate occasions' consequently imposes a requirement of detachment of one episode from another before the mandatory requirements of subdivision (d) become applicable.   By detachment we mean an interruption in the criminal activity of sufficient duration or nature that the end of one sexual episode and the start of another can be ascertained with reasonable certainty.”  (Id., at pp. 914–915, 200 Cal.Rptr. 479, fns. omitted.)

Further, the court found “episodic detachment” comparable to one of the factors determining whether sentences should be concurrent or consecutive, listed in rule 425, subdivision (a)(3) of the California Rules of Court.   Under that rule a sentencing court considers whether the “crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”   The Reeder court felt “single period of aberrant behavior” and “single transaction” mean the same thing.  (Id., at p. 915, fn. 5, 200 Cal.Rptr. 479.)

Applying these principles to its facts, the court held:  “The forcible sex crimes committed ․ all occurred on a single evening in one continuous, uninterrupted sequence over a short period of time in a car parked at the same spot.   Hence the end of one criminal episode was not set apart by an interruption of sufficient duration or nature that the beginning of another in this theatre of sexual cruelty can be ascertained with reasonable certainty.   Accordingly we hold that the ‘same victim on separate occasions' clause of section 667.6, subdivision (d), cannot be invoked to require that defendant serve full, separate, and consecutive sentences for each of the offenses committed․”  (Id., at pp. 915–916, 200 Cal.Rptr. 479.)

In People v. Smith (1984) 155 Cal.App.3d 539, 202 Cal.Rptr. 259, “[t]he charged sex crimes occurred over the course of a two-hour crime spree during which the victim was transported from San Mateo to Palo Alto, forcibly taken into a residence, and then forcibly taken back to the car.   A short time later the car was stopped by the police.”  (Id., at p. 544, 202 Cal.Rptr. 259.)

The court noted “[b]oth the statute and its legislative history are silent on the meaning of the term ‘separate occasions.’ ”  (Ibid.)  The court found no help in “common parlance” or “common idiom.”  (Ibid.)  It held “subdivision (d) when juxtaposed on section 654's complexities and when read in conjunction with subdivision (c) makes apparent that the Legislature had in mind that full consecutive terms for the described sex crimes with a single victim would be required only in situations where a significant period of time elapsed between the crimes.  [Citation.]  Certainly that standard would be met where the victim and the perpetrator have been separate and apart as in the situation where the same person breaks into the victim's home on successive nights and commits rape.   Here the various offenses occurred during the course of two hours.   The period of interruption between and among these outrages was only slight and at no point in any real sense were the victim and defendant separate and apart.   Unfortunately we cannot give a clearer test to sentencing courts since there is no legislative history to enlighten or to fill in the interstices of these statutory monuments.”  (Id., at p. 545, 202 Cal.Rptr. 259.)

The Smith court relied in part on People v. Collins (1983) 143 Cal.App.3d 742, 192 Cal.Rptr. 101, disapproved on other grounds in People v. Waite (1983) 146 Cal.App.3d 585, 592, 194 Cal.Rptr. 245, which, in turn, relies in part upon Fleming.  Collins involved 13 sex offenses, and robbery, committed by Collins and another man on one victim over a two to three-hour period.   The court held a consecutive sentence imposed by the trial court was not mandated by subdivision (d) because “there was an insufficient lapse of time between each of [the] specific acts to treat those acts as having occurred on separate occasions.  [Citations.]”  (People v. Collins, supra, 143 Cal.App.3d 742, 746, 192 Cal.Rptr. 101.)

Fleming, Reeder, Smith and Collins do not reflect a consistent approach to this admittedly difficult problem of statutory interpretation.28  We believe Fleming represents the most workable approach to subdivision (d).   While we do not necessarily disagree with the results in Reeder and Smith, we find their valiant attempts at clarity result in unfortunate complexity and confusion.29  The “ ‘attempt to explain [the phrase] renders an explanation of the explanation necessary.’  [Citation.]”  (See People v. Brigham (1979) 25 Cal.3d 283, 309, 157 Cal.Rptr. 905, 599 P.2d 100, conc. opn. of Mosk, J.)

For instance, Reeder talks of “detachment of sexual episodes” and equates “single period of aberrant behavior” with “single transaction.”  Smith talks about the passage of “a significant period of time,” and gives, as an example, rapes and burglaries against the same victim on successive nights.   While it might be possible to apply Reeder and Smith to the present case, we find the Fleming court's requirement of “some intervening events or passage of time” the best analytical tool in this context.

We conclude mandatory consecutive sentences are required by subdivision (d) in the present case.   The passage of time, four and one-half hours from contact with the defendants to the cessation of the assault, is not determinative.   (People v. Sutton, supra, 163 Cal.App.3d 438, 209 Cal.Rptr. 536.)   We need not recapitulate the facts in minute and revolting detail.   The following aspects of the series of assaults on Dawn trigger the application of subdivision (d):  she was driven to locations significant distances apart and subjected to a series of sexual assaults;  at each location the number, identity and manner of the assaults varied markedly;  and four of the assailants were people to whom the three defendants “gave” Dawn.   There was both passage of time and the occurrence of intervening events between the series of assaults.   We conclude there were separate occasions within the meaning of subdivision (d).  (People v. Sutton, supra, 163 Cal.App.3d 438, 209 Cal.Rptr. 536;  see also In re Culbreth (1976) 17 Cal.3d 330, 333–334, 130 Cal.Rptr. 719, 551 P.2d 23.)

 The Maldonados argue the determination of “separate occasions” is factual in nature, and the trial court made a factual determination there was one occasion, which is not properly second-guessed by this court.   The trial court did indicate “the crimes were committed so closely in time and place as to indicate a single period in occasion [sic ] of aberrant behavior.”

Although we agree in large part with the defendants' major premise, we disagree with their contentions about its application.  “Separate occasions” is a concept whose application will necessarily be grounded in the facts of a particular case.   Assuming, for the purpose of argument, the trial court purported to make a “factual finding” there was one occasion here, we are not bound by it.   This is not the sort of finding beyond our review, such as a determination of credibility.

The jury determined which sexual assaults occurred.   The trial court, when it passed sentence, did not in any way take issue with the jury's determination.   In other words, it is apparent the trial court, for purposes of sentencing, accepted the prosecution's version of events reflected in the verdict.   Any characterization of these events by the trial court as one occasion was in reality a legal conclusion interpreting the application of subdivision (d) to already established facts.   To characterize this as a finding of fact beyond this court's review is untenable.   Doing so would permit a trial court to place legal conclusions beyond appellate court review simply by characterizing the exercise of legal judgment as a finding of fact because it involves consideration of the facts of the case in some manner.   We are not bound by the trial court's conclusion.

Since the trial court failed to impose mandatory sentences pursuant to subdivision (d), remand is necessary for a proper sentence.   It is not our role to determine precisely how many separate occasions are present on this record.   That is for the trial court, bearing in mind the principles we have discussed.   We simply hold as a matter of law there was more than one occasion within the meaning of subdivision (d).

Clearly both subdivisions (c) and (d) are applicable to aspects of this case.  (See People v. Fleming, supra, 140 Cal.App.3d 540, 545, 189 Cal.Rptr. 619.)   To the extent subdivision (d) applies, the trial court can impose consecutive sentences without further elaboration.  (Ibid.)  To the extent subdivision (c) applies, the court will be faced with a sentence choice and will have to follow the sentencing procedure established by People v. Belmontes, supra, 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686.

The judgment is affirmed with respect to the determination of guilt.   The cause is remanded to the trial court with direction to rearraign the defendants and resentence them in accordance with the views expressed in this opinion.

FOOTNOTES

2.   All statutory references are to the Penal Code unless otherwise indicated.3

3.   Dawn wears a hearing aid and is unable to scream.

4.   Aguilera was tried separately.

5.   Phillip Gregory Maldonado apparently uses his middle name, so we also refer to him as “Gregory.”

FOOTNOTE.   See Footnote 1, ante.

23.   Section 654 provides:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

24.   The fact the sentences are unauthorized permits and indeed compels us to review them even on the defendants' appeal.  “It is well established that when the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court.   When the mistake is discovered while the defendant's appeal is pending, the appellate court should remand the case for a proper sentence.  [Citations.]”  (People v. Benton (1979) 100 Cal.App.3d 92, 102, 161 Cal.Rptr. 12.)   This is true even when the proper sentence will be greater than that actually, but erroneously, imposed.  (See People v. Serrato (1973) 9 Cal.3d 753, 764, 109 Cal.Rptr. 65, 512 P.2d 289, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144;  People v. Massengale (1970) 10 Cal.App.3d 689, 693, 89 Cal.Rptr. 237.)Consequently, the question of whether the People have a right to appeal the sentences is moot.   They have appealed pursuant to section 1238 subdivision (a)(5) from “[a]n order made after judgment” and subdivision (a)(6) from “[a]n order modifying the verdict or finding by reducing ․ the punishment imposed․”  We note only the argument with respect to subdivision (a)(5) is untenable for the same reasons it was rejected in Eberhardt and the argument with respect to subdivision (a)(6) presents the same tension resulting from the ambiguity of subdivision (a)(6) itself.  (See People v. Mendevil (1978) 81 Cal.App.3d 84, 88–89, fn. 3, 146 Cal.Rptr. 65.)

25.   For the reasons stated in People v. Cheffen, supra, 2 Cal.App.3d 638, 642, 82 Cal.Rptr. 658, we conclude there is no barrier to the trial court imposing a belated but proper sentence.

26.   Section 667.6, subdivision (d) provides:“(d) A full, separate, and consecutive term shall be served for each violation of subdivision (2) or (3) of Section 261, Section 264.1, subdivision (b) of Section 288, Section 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm if such crimes involve separate victims or involve the same victim on separate occasions.  [¶] Such term shall be served consecutively to any other term of imprisonment, and shall commence from the time such person would otherwise have been released from imprisonment.   Such term shall not be included in any determination pursuant to Section 1170.1.   Any other term imposed subsequent to such term shall not be merged therein but shall commence at the time such person would otherwise have been released from prison.”

27.   With respect to separate sex offenses on the same occasion, consecutive sentences are proper but not mandatory.  (§ 667.6(c);  see also People v. Belmontes (1983) 34 Cal.3d 335, 193 Cal.Rptr. 882, 667 P.2d 686.)

28.   The issue is currently pending before our Supreme Court in People v. Craft, Crim. 23800, hearing granted June 21, 1984.

29.   People v. Collins, supra, 143 Cal.App.3d 742, 192 Cal.Rptr. 101, does not contain such an attempt.

SONENSHINE, Associate Justice.

WALLIN, Acting P.J., and CROSBY, J., concur.