The PEOPLE, Plaintiff and Respondent, v. Richard MOLINA, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tuolumne County, James R. Hardin, Judge.
Robert A. Vittoria, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Robert D. Marshall and Michael T. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
On February 23, 1984, a four-count information was filed against Richard Molina, appellant. Count I charged a violation of Penal Code section 12021, ex-felon in possession of a firearm. Count II alleged a burglary (Pen.Code, § 459) of a residence on January 7, 1984. Count III was identical to count II except the date alleged was January 6, 1984. Count IV alleged the burglary of an office. It was also alleged as to each of the counts that the defendant had been previously convicted of two serious felonies within the meaning of Penal Code section 667, subdivision (a), and previously convicted of a felony within the meaning of Penal Code section 667.5, subdivision (b).
Defendant pleaded guilty to count I. Defendant made several pretrial motions. His motion to bifurcate the trial and have the enhancement tried separately was granted. Defendant moved to have his confession suppressed because it was not voluntarily made. (Evid.Code, § 405.) Applying the preponderance of the evidence standard, the court ruled that the confession was voluntarily made. Following the district attorney's opening statement, defendant made a motion for mistrial because the district attorney made an “improper” remark. The motion was denied.
The jury found defendant guilty of two counts of first degree burglary (counts II and III) and one count of second degree burglary (count IV). Defendant waived a jury trial on the enhancements. The court found the enhancements were not applicable to count I. The court found the enhancements to be true and applicable to counts II and III. The court found the Penal Code section 667.5, subdivision (b) enhancement to be true and applicable to count IV.
After conviction, defense counsel made a motion to strike the enhancements. The court denied the motion to strike the enhancements, finding it did not have the authority to do so.
The court sentenced defendant to the upper term of three years each for counts I and IV, and the upper term of six years each for counts II and III. Defendant was sentenced to one year for the Penal Code section 667.5, subdivision (b), enhancement, and five years each for the two Penal Code section 667, subdivision (a) enhancements. All the terms were ordered to run consecutively. The total sentence imposed was 18 years 8 months, and was computed as follows:
Dr. Hubert Parker left his dental office in Sonora for the evening on January 5, 1984. He secured the office when he left. His daughter came to work the morning of January 6 and found the door unlocked. The office was in a state of disarray. Some food had been consumed from the refrigerator and a blanket was missing. It appeared that someone had failed in an attempt to pry open the drug cabinet.
John and Jenette Wilson resided in a house located behind the high school in Sonora. They left their home for a trip to San Diego on the morning of January 6, 1984. The house was secured. Their son, John D. Wilson, had a key to the house and had permission to enter and use the house. The son arrived at his parents' house at 10 p.m. on January 6, 1984. The house was in a state of disarray and a window had been broken. He noticed that some food was missing. The police arrived and investigated. They found a footprint near the house which had a distinctive design. Photos were taken of the print. The son cleaned up the house, boarded up the broken window, and secured the house. He returned the next night, January 7, 1984, and found the cardboard on the window had been pushed in. The house was once again in a state of disarray and the son noticed more items missing, including a radio and a blanket. He also noticed small blood stains throughout the house.
The defendant was arrested near the high school on other charges on January 12, 1984. He was interviewed by Thomas Kaufmann, an investigator for the Tuolumne County Sheriff's Department. After waiving his Miranda rights, defendant stated that he had committed a burglary in a house near the high school. He also mentioned he had burglarized a doctor's office. Defendant gave Kaufmann the location of the stolen property. Kaufmann recovered some of the property and contacted Officer Campana, an investigator with the Sonora Police Department, the next morning. Defendant led Kaufmann and Campana to more property. Defendant was returned to the station, and Campana interviewed him. Defendant again admitted to committing the three burglaries. Defendant's shoes were seized at the jail pursuant to a search warrant. Campana talked to the defendant two or three days later and observed a small cut on his hand which was healing.
At trial, Mrs. Wilson identified the property recovered by Kaufmann and Campana which included a purse, numerous jewelry items, gloves, a sweater, blankets, a radio and silverware.
The photos of the shoe print matched the pattern of the print on the shoes seized from the defendant.
DOES ARTICLE I, SECTION 28, SUBDIVISION (d) OF THE CALIFORNIA CONSTITUTION (PROPOSITION 8) REQUIRE CALIFORNIA TO FOLLOW THE FEDERAL STANDARD FOR JUDGING THE VOLUNTARINESS OF A CONFESSION? WAS IT ERROR FOR THE TRIAL COURT TO APPLY THE PREPONDERANCE OF THE EVIDENCE STANDARD?
Article I, section 28, subdivision (d) of the California Constitution (commonly referred to as Proposition 8) provides:
“Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.”
Prior to the enactment of this section of the Constitution, California required that before a confession could be used against a defendant the prosecution must prove beyond a reasonable doubt that the confession was voluntary and not the result of any form of compulsion or promise of reward. (People v. Jimenez (1978) 21 Cal.3d 595, 606–608, 147 Cal.Rptr. 172, 580 P.2d 672.)
The federal standard for judging the voluntariness of a confession is that the prosecution must prove the confession was voluntary by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618.)
The Third District Court of Appeal in the case of In re Randy H. (Civ. 22596) decided that the preponderance of the evidence standard is the correct standard in California following Proposition 8. A hearing was granted in that case on May 17, 1984, by the California Supreme Court. On May 2, 1985, the cause was retransferred to the Third Appellate District for reconsideration in light of Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789.
During the hearing in the instant case, the district attorney cited the Randy H. case to the court (as of the date of the motion below, a hearing had not yet been granted in the Supreme Court), but argued that the reasonable doubt standard should be applied because the evidence was sufficient to meet the higher standard. The court thought the Randy H. case made sense and stated: “The standard will be a preponderance of the evidence rather than proof beyond a reasonable doubt.” Applying this standard, the court found the confession to be voluntarily made.
Respondent contends that Jimenez is overruled by article I, section 28, subdivision (d) of the California Constitution. Furthermore, respondent asserts that Jimenez is not salvaged by any evidentiary privileges, specifically Evidence Code section 940. Respondent contends that Jiminez cannot be saved by providing it with a new state constitutional basis because Evidence Code section 940 establishes a testimonial privilege and is inapplicable to extrajudicial statements.
Defendant contends that Jiminez is salvaged through both statutory and constitutional evidentiary privileges which survive Proposition 8. Defendant contends that the reasonable doubt standard is required in order to safeguard the privilege against self-incrimination as contained in the California Constitution. (Art. I, § 15). We agree and so hold.
In Ramona R. v. Superior Court, supra, 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789, modified 38 Cal.3d 453a, a 17-year-old was charged with murder. A hearing was held to determine if she was fit to be tried in juvenile court. Based on article I, section 28, subdivision (d) of the California Constitution, the lower court refused to grant her immunity from use at trial of any statement she made in the fitness hearing or to her probation officer. (Id., at p. 804, 210 Cal.Rptr. 204, 693 P.2d 789.) She refused to testify at the fitness hearing and it was ultimately found she was not a fit subject for juvenile court. (Id., at p. 806.) She sought a writ of mandate to compel the lower court to vacate its order declaring her unfit because the “use” immunities survived Proposition 8. The California Supreme Court agreed.
The Supreme Court in Ramona R. began with an analysis of Evidence Code section 940:
“Amicus curiae State Public Defender urges that the use immunities ․ fall within the exception to section 28(d) for ‘existing statutory rule[s] of evidence relating to privilege.’ He relies on Evidence Code section 940 (hereinafter section 940), which declares that ‘To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.’ The Attorney General, in the June 10, 1982 supplement to his Guide to Proposition 8 (1982) at page 4–52, concedes that “[s]ection 940 is a statutory rule of evidence relating to privilege deriving content from both the state and federal constitutions.” He argues, however, that section 940 “establishes a testimonial privilege; it is inapplicable to extrajudicial statements.” (Ibid., italics in original.) A close examination of section 940 reveals that the Attorney General's position lacks merit.
“It is true that section 940 does not on its face refer to use immunities. However, the language of that provision is purposefully broad, and is meant to include within its reach judicial decisions relating to the privilege against self-incrimination. The Law Revision Commission comment to section 940 declares that ‘Section 940 does not determine the scope of the privilege against self-incrimination; the scope of the privilege is determined by the pertinent provisions of the California and United States Constitutions as interpreted by the courts.’ Thus, we must determine whether the use immunities [established in previous California cases] are mandated by the United States of California Constitutions, including judicial interpretation thereof. If they are, they fall within the exception to section 28(d) for statutory privileges, and thus survive the adoption of Proposition 8.” (Emphasis added.) (Id., at p. 808, 210 Cal.Rptr. 204, 693 P.2d 789.)
Since Randy H. was sent back to the Third District to reconsider in light of Ramona R., the same analysis used in Ramona R. should be followed to determine the issue in this case.1
The above underscored language and a recent case from this court, People v. Barrios (1985) 166 Cal.App.3d 732, 212 Cal.Rptr. 644, clearly establish that Evidence Code section 940 is more than a testimonial privilege to protect a defendant from incriminating statements he might give on the witness stand. Evidence Code section 940 is meant to include decisions relating to the privilege against self-incrimination. This court must therefore determine if the Jimenez beyond-a-reasonable-doubt standard for judging the voluntariness of a confession is mandated by the United States or California Constitutions. If it is, then it is a decision relating to self-incrimination which is protected by Evidence Code section 940 and survives Proposition 8.
Clearly, Lego v. Twomey establishes that the Jimenez standard is not mandated by the United States Constitution. But, California has consistently expanded the rights of a criminal defendant over those enunciated by the United States Supreme Court by finding the right to be founded upon the California Constitution. (People v. Alfieri (1979) 95 Cal.App.3d 533, 544, 157 Cal.Rptr. 304.)
The California Supreme Court in Jimenez did not expressly state that its determination that the reasonable doubt standard applied in California was based upon the California Constitution. However, such an interpretation can be gleaned from the discussion in Jimenez.
The court discussed what the trial court has to decide when determining if a confession was voluntarily given.
“In making this determination, the trial court will often have to decide which one of two self-serving accounts to believe, as the testimony presented at a Jackson hearing ordinarily consists of conflicting versions by the defendant and law enforcement officers as to what occurred during the interrogation of the defendant by those officers which led to the defendant's confession. (See Lego v. Twomey, supra, 404 U.S. at p. 492 [92 S.Ct. at p. 628, 30 L.Ed.2d at p. 629]; Brennan, J. dis.) In light of the factual nature of this inquiry, the degree of certainty as to which a trial court must be convinced that a confession is voluntary will often be of controlling significance. (Id. p. 492 [92 S.Ct. at p. 628, 30 L.Ed.2d p. 629].) Thus, under the preponderance of the evidence test, a trial court will more often resolve factual conflicts in the evidence in favor of admitting a challenged confession, and this will correspondingly increase the risk that some involuntary confessions will thereby be admitted. The contrary result would obtain, however, if the reasonable doubt standard were applied, and this would thus decrease the risk that involuntary confessions would be admitted. (Id. at p. 493 [92 S.Ct. at p. 628, 30 L.Ed.2d at pp. 629–630].)” (Id., 21 Cal.3d at p. 606, 147 Cal.Rptr. 172, 580 P.2d 672.)
Immediately following this the court stated:
“Given the strong policies underlying the privilege against self-incrimination, which require exclusion of any coerced confession, and which mandate automatic reversal of a conviction whenever a coerced confession has been used against the accused at trial, it is apparent that the standard of proof for determining the admissibility of confessions in the first instance should be that standard which minimizes the risk, to the greatest extent possible, that a coerced confession will be admitted into evidence at trial.” (Id., at p. 606, 147 Cal.Rptr. 172, 580 P.2d 672.)
To say it in other words, the strong policies underlying the California constitutional privilege against self-incrimination require that the admissibility of confessions be judged by the reasonable doubt standard.
Further support for this is found in the following statement:
“The rule which we have enunciated today requiring the prosecution to prove the voluntariness of a confession beyond a reasonable doubt, although it may have a different basis than did the pre-Lego California decisions (People v. Stroud, supra, 273 Cal.App.2d 670, 678 [78 Cal.Rptr. 270] ․; People v. Jackson, supra, 19 Cal.App.3d 95, 100 [96 Cal.Rptr. 414]; People v. Superior Court (Bowman) (1971) (dictum) 18 Cal.App.3d 316, 320–321 [95 Cal.Rptr. 757] ․), nevertheless reaches the same result; thus, any uncertainty that may have existed in the years after Lego as to the appropriate standard of proof in California for determining the voluntariness of a confession will now be eliminated and continuity will be restored to the law on this issue.” (Id., at p. 608, 147 Cal.Rptr. 172, 580 P.2d 672.)
The court in People v. Stroud (1969) 273 Cal.App.2d 670, 678, 78 Cal.Rptr. 270, found that the reasonable doubt standard applied based on federal law. (See People v. Barrow (1976) 60 Cal.App.3d 984, 990, 131 Cal.Rptr. 913.) The court in People v. Superior Court (1971) 18 Cal.App.3d 316, 320, 95 Cal.Rptr. 757 relied on Stroud. The court in People v. Jackson (1971) 19 Cal.App.3d 95, at page 101, 96 Cal.Rptr. 414, also relied on Stroud. The previous California rule as enunciated in Stroud remained unchanged in Jimenez except that it no longer was dependent upon federal authority.
Since the rule of Jimenez is placed on a California constitutional footing, it is encompassed by Evidence Code section 940. Article I, section 28, subdivision (d) excepts Evidence Code section 940 “from application of the other provisions of Proposition 8 and allows for continued application of ‘independent state grounds' in California Constitution, article I, section 15 ‘self-incrimination’ factual situations.” (People v. Navarez (1985) 169 Cal.App.3d 936, 945, 215 Cal.Rptr. 519.)
Respondent argues that even if the court erred in applying the wrong standard, the error is not reversible. Respondent relies on the statement made by the court when it made its ruling.
Defendant contends that had the court used the beyond a reasonable doubt standard its ruling would have been different. He contends that his testimony that he had previously made a deal with Kaufmann on a previous occasion was not contradicted.
Officer Kaufmann testified at the Evidence Code section 405 hearing. He was called at home to come down to the station to interview defendant. Kaufmann walked into the interview room, told defendant he had “messed up,” told defendant of the information he had about certain crimes in Fullerton, told defendant he wanted to talk to him about the Fullerton crimes and other activities, and then advised him of his Miranda rights. Defendant said he understood and wanted to talk. Over the course of the 1 hour 15 minute interview, defendant discussed crimes from Orange County and the burglaries in Sonora. Defendant told Kaufmann where the stolen property was located. Near the end of the interview when defendant described where the property was, Kaufmann told him he would note that he had cooperated though he had no control over the case.
Kaufmann had interviewed defendant one and one-half years earlier concerning a Tuolumne County burglary with which defendant had been charged. Defendant had approached Kaufmann with a desire to provide information. Defendant provided Kaufmann with information. In exchange for his cooperation Kaufmann told the defendant he would go to bat for him and point out his cooperation. Kaufmann testified that in connection with the earlier interview he did not think he ever told defendant the charges would be dismissed or ask defendant to do anything for him. Ultimately, the charges against defendant were dismissed and not refiled.
On January 13, 1984, Officer Kaufmann introduced Officer Campana to the defendant. Officer Campana asked defendant if Kaufmann had read him his rights and asked him if he understood. Defendant said yes. Campana then interviewed defendant and he provided more information about the instant burglaries. After recovering more property Campana indicated that he would tell the district attorney that the defendant had been cooperative. Other than their promises at the end of the interviews to note defendant's cooperation, Kaufmann and Campana both testified that they made no promises or threats to the defendant prior to or during the interviews.
Defendant was not required to sign a waiver form because Kaufmann thought defendant understood his rights. The interviews were not tape recorded. No one else was present when Kaufmann interviewed the defendant.
Defendant testified that in 1982 or 1983 he was contacted by Kaufmann in Orange County; that Kaufmann asked him if he would testify against his crime partner; that Kaufmann told him that if he agreed no charges would be “filed;” that he cooperated and the charges were dropped; that as part of his agreement with Kaufmann he remained in jail after the charges were dropped to obtain information concerning various robberies and burglaries; that during the interview with Kaufmann on January 12, 1984, Kaufmann did not advise him of his rights until halfway through the interview; that Kaufmann told him that if he admitted the burglaries “he would go down and talk to the DA, and we would do the same thing like we did the last time;” that he understood Kaufmann's statement to mean that he would drop the burglary charges; that he did not tell Kaufmann anything about the Sonora burglaries until Kaufmann had made this statement; and that he would not have told Kaufmann anything if not for the promise.
After stating that he was adopting the preponderance of the evidence standard, the court made the following statement:
“[F]irst of all, we have the matter of the advisement of the Miranda rights. As between the defendant and Officer Kaufmann, the testimony is conflicting as to when they were given. Mr. Kaufmann says it was about ten minutes afterwards, after they started the interview in the investigator's room where it was strictly one-on-one and nobody else present; the defendant says about midway through after they had already discussed the burglaries in Tuolumne County.
“The witness Kaufmann said the rights were read to the defendant and he consented to talk about the matters before they got into the Tuolumne County burglaries.
“Added to that is the testimony of Officer Campana. If I understand Officer Campana's testimony, that when he was first introduced to the defendant, he asked a series of questions before getting into a description about the burglaries or otherwise. He testified that he was introduced, he, Officer Campana was introduced to the defendant, Mr. Molina in Officer Kaufmann's office about one p.m. on that date.
“He asked the defendant if Mr. Kaufmann had read him his rights and did he understand them and would he talk to Officer Campana about the burglaries, and there was an affirmative, or yes to each one of those, and that the defendant agreed to talk to him about the Tuolumne County burglaries.
“Now there is a no question by the defendant at that time ‘Well, no, I wasn't properly advised.’ Yet he wants to sit back and say “I wasn't properly advised; I will run along now and tell him yes and come back later and the answer is no.'
“The Court is going to adopt the finding that the defendant was advised of his Miranda rights prior to the giving of the statement regarding Tuolumne County burglaries.
“Now as to the voluntariness of the statements in reliance on some promises or representations on the part of Officer Kaufmann to go to the District Attorney's office, when you look back at the 1982–1983 provision that the defendant now says ‘I was to get the same deal as I had back in 1982–1983.’
“As I look at the 1982 and 1983 transactions between the defendant and Kaufmann, any consideration of possibly going to the District Attorney and so forth was predicated upon the future services to be performed by the defendant, and that was to be to find out information while in the jail about other transactions, to report back to the Jail Commander, Officer Kaufmann, or whoever else it was; that this was a so-called—and assuming it was supposing an agreement—was a so-called consideration for services to be performed in the future.
“When you get to the transaction currently before the Court, I don't find anything that there was ever any indication that services were going to be performed in the future by the defendant in any way, shape or form similar to ‘the same as the last time,’ 1982–'83.
“In effect, what the defendant is trying to say is that once you have made a deal with an officer, assuming the deal has been made, that he is forever estopped from ever doing otherwise thereafter, and it just doesn't make sense.
“It automatically stops every time he talks to that officer. It makes absolutely no sense.
“The Court is going to deny the motion to suppress the evidence. The Court will find the statements were made voluntarily to the officer without any reliance upon any claimed special treatment.”
“[S]ince any error as to the standard of proof applied in determining the voluntariness of a confession relates only to a question of preliminary fact, we have concluded that the effect of any such error should be measured in accordance with the standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243] ․; thus when it appears after looking at the whole record of the voluntariness hearing that there is no reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error, the trial court's finding of voluntariness should be sustained on appeal.” (People v. Jimenez, supra, 21 Cal.3d at p. 609, 147 Cal.Rptr. 172, 580 P.2d 672.)
On review this court must examine the uncontradicted facts to determine independently if the trial court's conclusion was proper. (Id., at p. 609, 147 Cal.Rptr. 172, 580 P.2d 672.) When there is conflicting evidence, this court must accept the version which is most favorable to the People. (Ibid.) The entire record must be considered including all the surrounding circumstances, including characteristics of the accused and details of the interrogation. (People v. Flores (1983) 144 Cal.App.3d 459, 468, 192 Cal.Rptr. 772.)
“The relevant principles regarding implied promises of leniency or benefits are stated in People v. Hill (1967) 66 Cal.2d 536, 549 [58 Cal.Rptr. 340, 426 P.2d 908] ․: ‘The line to be drawn between permissible police conduct and conduct deemed to induce or tend to induce an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the police. Thus, “advice or exhortation by a police officer to an accused to ‘tell the truth’ or that ‘it would be better to tell the truth’ unaccompanied by either a threat or a promise, does not render a subsequent confession involuntary.” [Citation.] ․
“ ‘When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. The offer or promise of such benefit need not be expressed, but may be implied from equivocal language not otherwise made clear.’ ” (Id., at p. 468, 192 Cal.Rptr. 772.)
Defendant testified that on a prior occasion Kaufmann had dismissed charges in exchange for his cooperation. Kaufmann's testimony that he doesn't think he said this to the defendant on the prior occasion is equivocal and does not constitute a contradiction of the defendant's statements. (People v. Jimenez, supra, 21 Cal.3d 595, 612, 147 Cal.Rptr. 172, 580 P.2d 672.)
Kaufmann's and defendant's testimony were contradictory as to whether Kaufmann offered defendant similar benefits for making a confession now in question. Kaufmann testified that at the end of the interview, after defendant told him where the property was, he told defendant that he would note his cooperation but that he had no control over the case. After reviewing the entire record in light of the principles set forth in Jimenez and Flores, and noting the strong language used by the trial court in rejecting defendant's claim, we hold that it is not reasonably probable a result more favorable to the defendant would have been reached had the trial court applied the reasonable doubt standard. The trial court's finding of voluntariness is therefore sustained.
DID PROSECUTORIAL MISCONDUCT OCCUR DURING OPENING ARGUMENT?
IF SO, IS IT REVERSIBLE ERROR?III.2DID THE TRIAL COURT ERR BY FAILING TO EXERCISE ITS DISCRETION TO STRIKE THE ENHANCEMENTS?IV.2DOES DEFENDANT'S SENTENCE OF 18 YEARS 8 MONTHS CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT?V.2DO PENAL CODE SECTIONS 667 AND 667.5 VIOLATE EQUAL PROTECTION?VII.2DOES PENAL CODE SECTION 667 VIOLATE CONSTITUTIONAL GUARANTEES AGAINST DOUBLE JEOPARDY?
The judgment is reversed and the case is remanded to the trial court with directions to resentence defendant in light of the conclusion expressed in part III of this opinion.
1. In People v. Dingle (1985) 174 Cal.App.3d 21, 27, 219 Cal.Rptr. 707, footnote 6, the Fourth District, Division One held, without discussion, that in light of Ramona R. the California standard applies to the issue of voluntariness of confessions. As of this date a petition for hearing is pending in the California Supreme Court.
2. See footnote *, ante.
CASTELLUCCI *, Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.
FRANSON, Acting P.J., and PAULINE DAVIS HANSON, J., concur.