PEOPLE v. GUILLEN (1985)

Defendant Angel Rodriguez Estrada (Estrada) was convicted of two counts of burglary of an inhabited residence (Pen.Code, § 459) and of receiving, concealing or withholding stolen property (Pen.Code, § 496). Codefendant Jose Louis Guillen (Guillen) was convicted of burglary of an inhabited residence (Pen.Code, § 459) and of receiving, concealing, or withholding stolen property (Pen.Code, § 496). The court found an allegation of a prior serious felony conviction of residential burglary as to each defendant to be true. (Pen.Code, §§ 667, 1192.7, subd. (c).)

The defendants raise a number of contentions in this consolidated appeal. We affirm both judgments.

I 1

II

Guillen contends that he was denied the constitutional right to an interpreter because he shared his interpreter with his codefendant Estrada and briefly with one of his own witnesses. Article 1, section 14 of the California Constitution provides in pertinent part: “A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.”² Relying on People v. Aguilar (1984) 35 Cal.3d 785, 200 Cal.Rptr. 908, 677 P.2d 1198, Guillen argues that the court should have provided an interpreter for his exclusive benefit. Estrada does not so contend.

In discussing the constitutional right to an interpreter, the Court in Aguilar recognized the three crucial functions served by an interpreter in criminal proceedings. The first role, labeled “witness interpreter,” is performed on behalf of the court. It involves interpretation of questions posed to and answers of a non-English speaking witness. The second role, called “proceedings interpreter,” involves interpretation of the ongoing proceedings for the benefit of a defendant. The third role, “defense interpreter,” involves interpretation of the communications between a defendant and his counsel. (People v. Aguilar, supra, 35 Cal.3d at pp. 790–791, 200 Cal.Rptr. 908, 677 P.2d 1198.) Of these three, only the “proceedings” and “defense” interpreter roles involve constitutional rights of defendants.³

Aguilar and the bulk of appellate opinions address a situation where a defendant is temporarily totally deprived of the assistance of his or her appointed interpreter.⁴ These cases are usually referred to as “borrowed interpreter” cases. In Aguilar, the court “borrowed” the defendant's appointed interpreter to interpret the testimony of two prosecution witnesses. The court stated that as a result the defendant, whom the trial court found needed the assistance of an interpreter, was left without means of understanding the proceedings and communicating with defense counsel. (Id.)⁵

Other Aguilar progeny have considered a related, but distinct, problem of incompatible multiple interpreter roles played by a single interpreter. (See People v. Rioz (1984) 161 Cal.App.3d 905, 207 Cal.Rptr. 903; People v. Resendes (1985) 164 Cal.App.3d 812, 210 Cal.Rptr. 609.) We refer to those cases where a defendant's interpreter does not temporarily suspend the services being rendered on behalf of the defendant, but takes on other duties, as “shared interpreter” cases.

In this case, inadequacies in the record on appeal impede clear legal analysis of the substantive issues. The record here does not disclose (1) any court determination that Guillen was “․ unable to understand English ․” or unable to communicate with his counsel without an interpreter, or (2) any court order appointing an interpreter in any capacity for Guillen or Estrada. Minute orders in Guillen's record and in Estrada's record merely indicate that at various times the same person was sworn or present as an interpreter, although one minute order does state that a particular person was sworn as “an interpreter for defendants.” The reporter's transcript contains parenthetical references to the swearing in of an interpreter, occasional on-the-record remarks of an interpreter, and comments of the court indicating an interpreter was acting on behalf of Guillen and Estrada.

We are impliedly asked to presume that (1) Guillen was unable to understand court proceedings and communicate with his attorney without the services of an interpreter, and, therefore, (2) he had a constitutional right to an interpreter serving him in both a “proceedings” and “defense” capacity. In division I, section 18, of the appendix to the California Rules of Court (Standards of Judicial Administration), the recommended procedure for determining the need for an interpreter is set forth. There is no indication that anything even remotely similar to such an examination was performed in this case.

Neither case law, statute, nor court rule mandates procedures or standards to guide a judge in determining whether to appoint or permit an interpreter to act on behalf of a defendant or in determining the specific function of such interpreter. A court's apparent consent to a requested appointment or use of an interpreter by a defendant may not necessarily mean that the defendant was constitutionally entitled to an interpreter, the court was acting under constitutional imperative, or the defendant was unable to both comprehend court proceedings and freely communicate with his attorney in a mutually understood language. (See Cal.Rules of Court, Append., div. I, § 18, subd. (a).) Consequently, presumptions in those regards are unwarranted. As a general rule, facts or matters not contained in the court record are beyond the scope of review on appeal. (People v. Brawley (1969) 1 Cal.3d 277, 294–295, 82 Cal.Rptr. 161, 461 P.2d 361.)

In view of the record, it would be utter speculation that Guillen could not communicate with his attorney due to a language barrier. We decline to engage in such conjecture.⁶

The proposition that Guillen was unable to understand English and needed an interpreter to aid him in comprehending the proceedings, that Guillen and Estrada shared a “proceedings” interpreter, and that their interpreter simultaneously translated one defense witness' testimony during a pre-trial hearing has some support in the record, although it still involves surmise. Nevertheless, even were we to assume those facts arguendo, we cannot discern from the record before us any constitutional infirmity.

This case does not fall into the first category of “borrowed interpreter” cases. There is nothing in the record to show that Guillen was denied a “proceedings” interpretation when his interpreter acted for both defendants or added the duty of “witness” interpretation. The only period when the interpreter translated for a witness was during a pre-trial hearing, outside the presence of the jury, on defendants' motion for certification of their cases to juvenile court. In this hearing, the interpreter interpreted the testimony of a Spanish-speaking witness called by Guillen, not by the prosecution. The record does not indicate that the interpreter ceased translating the proceedings for defendants when she translated the witness' testimony for the court. To the contrary, it would appear that the proceedings continued to be translated into Spanish.⁷

We view this case as a “shared interpreter” case. Apparently, Guillen reads Aguilar as precluding all “shared interpreter” arrangements. However, we do not perceive the Constitution or the Aguilar opinion as establishing an absolute proscription against an interpreter playing multiple roles under all circumstances.

In Aguilar, the court held that the constitutional right to an interpreter throughout the proceedings requires provision of an interpreter “․ to aid the accused during the whole course of the proceedings.” (People v. Aguilar (1984) 35 Cal.3d 785, 790, 200 Cal.Rptr. 908, 677 P.2d 1198.) The court commented on the reasons militating against a single person serving as both a “defense” and “witness” interpreter and multiple roles in general: “Compelling reasons exist for the appointment of more than one interpreter: ‘[It] is nearly impossible for one interpreter to translate the testimony of a witness while simultaneously translating and listening to the discussions between defendant and counsel. It is in these circumstances that a defense interpreter is most needed to ensure adequate representation by the defendant's counsel.’ [Citation.] Requiring two interpreters in cases such as the one before us has additional benefits to the criminal justice system because ‘it is difficult for an interpreter who has worked closely with the defendant and his counsel in the preparation of the defense from the pretrial stage to translate the court proceedings impartially. Finally, a separate defense interpreter would serve to ensure the accuracy of the proceedings and witness interpreters.’ [Fn. Omitted. Citation.]” (People v. Aguilar, supra, 35 Cal.3d at p. 793, 200 Cal.Rptr. 908, 677 P.2d 1198.)⁸

Although concerns relative to the integrity of the fact finding process may weigh against multiple function interpreters, it does not necessarily foilow that any assumption of multiple roles by a defendant's appointed interpreter constitutes a violation of that defendant's constitutional right to an interpreter.

In “shared interpreter” cases, once a threshhold determination is made that the record establishes a constitutional entitlement to a “proceedings” or “defense” interpreter, we believe sound legal analysis requires (1) identification of each of the roles which were required to be served by the defendant's interpreter (i.e. “proceedings” interpreter for defendant, “proceedings” interpreter for a codefendant, and “witness” interpreter for the court), (2) determination whether concurrent performance of those roles resulted in impairment of interpreter services performed on behalf of the defendant, and (3) determination whether such impairment was prejudicial.⁹

As noted previously, the most we can surmise from the record is that Guillen was entitled to, and provided with, a “proceedings” interpreter who served concurrently as a “proceedings” interpreter for Estrada and as a “witness” interpreter briefly. Applying the above analysis to these presumed facts, we find that the record fails to demonstrate that an interpreter acting on behalf of Guillen served incompatible multiple roles which resulted in impairment of “proceedings” interpretation performed on Guillen's behalf.

We do not believe, and no case holds, that mere interpretation of ongoing proceedings for two codefendants is necessarily violative of the constitution. In this particular instance, nothing in the record shows that the “proceedings” interpretation for Guillen was impaired because Guillen's interpreter was also translating the proceedings for Estrada's benefit. In addition, the record does not establish that the concurrent “witness” and “proceedings” interpretation resulted in impairment of the “proceedings” interpretation being provided Guillen. Consequently, we are unable to conclude there was an infringement of any constitutional right Guillen presumptively had to a “proceedings” interpreter.

Where a defendant requires “defense” interpretation, a “shared interpreter” situation will usually result in an impairment of the defendant's constitutional right to an interpreter because as a practical matter an interpreter who has assumed other additional roles is not readily available to facilitate attorney-defendant communications. As discussed infra, the record here does not support an inference that Guillen required, or his interpreter was responsible for providing, “defense” interpretation. Thus, there is no basis for concluding that an interpreter for Guillen assumed a dual role of “witness” and “defense” interpreter which was disapproved of by Aguilar. Neither is there any foundation to conclude that an interpreter for Guillen attempted to fulfill a “defense” interpreter function for Guillen while performing incompatible functions for a non-English speaking codefendant. (Cf. People v. Resendes (1985) 164 Cal.App.3d 812, 210 Cal.Rptr. 609; People v. Rioz (1984) 161 Cal.App.3d 905, 207 Cal.Rptr. 903.)¹⁰

Even if we were to accept a premise that Aguilar mandates the appointment of a single “proceedings” interpreter for each defendant constitutionally entitled to one and forbids any joint use (but see People v. Rioz, supra, 161 Cal.App.3d at p. 913, 207 Cal.Rptr. 903 [individual interpreters may not be mandated in all conceivable proceedings for each of multiple defendants jointly charged] ), Guillen fails to establish on the record any prejudice resulted from sharing an interpreter with a codefendant or briefly with the court. Aguilar states: “The defendant's right to understand the instructions and rulings of the judge, the questions and objections of defense counsel and the prosecution, as well as the testimony of the witnesses is a continuous one․” (People v. Aguilar (1984) 35 Cal.3d 785, 790, 200 Cal.Rptr. 908, 677 P.2d 1198.) The record does not reveal that the “proceedings” translation on behalf of Guillen was less effectual as a result of the interpreter acting jointly for Guillen and his codefendant or acting briefly as a “witness” interpreter for his own witness during a pre-trial hearing.

There is no consensus among the appellate courts as to the proper standard of review.¹¹ The issue is currently before our Supreme Court. We believe the reversible per se standard is not the appropriate standard for reviewing a claimed infringement of the right to an interpreter where it appears from the record the defendant had an interpreter, but those services were shared with codefendants or witnesses. Not all due process deprivations occurring during criminal proceedings result in a reversal per se. (See e.g. People v. Taylor (1982) 31 Cal.3d 488, 183 Cal.Rptr. 64, 645 P.2d 115; Chapman v. California (1967) 386 U.S. 18, 87 S .Ct. 824, 17 L.Ed.2d 705.) Errors involving ineffective assistance of counsel or violation of the right to conflict free counsel are not subject to a reversible per se standard under California law. (See People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859; People v. Mroczko (1983) 35 Cal.3d 86, 197 Cal.Rptr. 52, 672 P.2d 835.) As we can discern no prejudice, actual or based upon “informed speculation,” from the record before us, nor has Guillen asserted any, we find his claim of error on appeal to be without merit regardless of whatever lesser standard of prejudice may be applicable.

III–IV 12

V

Guillen contends that the five-year sentence enhancement imposed pursuant to Penal Code section 667 must be stricken because the prosecution went beyond a judgment of conviction to prove the nature of the prior burglary offense. We disagree.

The information in the present case alleged that Guillen suffered a prior serious felony conviction of residential burglary. To prove the conviction, the People introduced into evidence an information, a change of plea form, a probation officer's report,¹³ and an order granting probation all from the previous burglary prosecution. The information from the former case alleged that on or about June 20, 1980, Roberto Martinez Hernandez (aka Guillen) unlawfully entered a building with intent to commit theft in violation of section 459. The change of plea form, signed by the defendant, stated that he desired to plead guilty to a violation of Penal Code section 459 and had violated the section by “helping his friend Gonzalez to enter a house to steal something.”¹⁴ The probation report stated that the burglary was of a residence. The court found the prior serious felony allegation to be true.

Guillen relies primarily upon People v. Crowson (1983) 33 Cal .3d 623, 633–634, 190 Cal.Rptr. 165, 660 P.2d 389, which concerned sentence enhancements for prior felony convictions under Penal Code section 667.5. Crowson held that enhancement under that section based on a foreign conviction is permissible under Penal Code section 667.5 only when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all elements of a felony defined under California law.

Fundamentally a statutory construction case, Crowson emphasized that subdivision (f) of Penal Code section 667.5 provided “ ‘․ [a] prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law provided the defendant served one year or more in prison for such offense in the other jurisdiction.’ (Italics added.)” (People v. Crowson, supra, 33 Cal.3d at p. 633, 190 Cal.Rptr. 165, 660 P.2d 389.) The court went on to say that “[a]s used in other portions of section 667.5, the term ‘offense’ quite clearly refers to a specific crime as defined by law, and not simply to the actual conduct of the defendant. [Fn. omitted.]” Id .) Given this controlling statutory construction, it was logical for the Crowson court to conclude the prosecution was limited to proving the elements of the foreign crime and could not attempt to show that the prior foreign conviction actually involved a greater, lesser, or different offense. (See People v. Crowson, supra, 33 Cal.3d at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.)

In contrast, People v. Jackson (1985) 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, also a statutory construction case, concerned sentence enhancements for prior serious felony convictions under Penal Code section 667, which incorporated the list of serious felonies set out in Penal Code section 1192.7. Unlike Crowson, Jackson found that a prior felony “offense” under Penal Code sections 667 referred to the conduct underlying the conviction, not merely statutorily defined crime. It found “burglary of a residence” (Pen.Code, § 1192.7, subd. (c)(18)) referred “․ not to specific criminal offenses, but to the criminal conduct described therein․” (People v. Jackson, supra, 37 Cal.3d at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.) The court further concluded that the enhancement provisions of Penal Code section 667 were “․ applicable whenever the prosecution pleads and proves that conduct.” (Id.)

However, the Jackson court said by way of dicta: “Crowson established two propositions relevant to the present case: (1) that proof of a prior conviction establishes only the minimum elements of the crime, even if the charging pleading contained additional, superfluous allegations; and (2) that the prosecution cannot go behind the record of the conviction and relitigate the circumstances of the offense to prove some fact which was not an element of the crime․” (37 Cal.3d at p. 834, 210 Cal.Rptr. 623, 694 P.2d 736.) We believe that the propositions assertedly established by Crowson must be considered in conjunction with its statutory interpretation of Penal Code section 667.5, subdivision (f).

Ordinarily, the state may offer to prove the existence of a fact by any evidence which conforms to the rules of evidence or is not subjected to a timely evidentiary objection or motion to strike or exclude. (Pen.Code, § 1102; Evid.Code, § 353.) The Crowson decision affects the admissibility of evidence only in so far as it makes evidence of a defendant's actual conduct underlying a prior foreign felony conviction immaterial and irrelevant under Penal Code section 667.5 and susceptible to an evidentiary objection on those grounds. The proof limitation suggested in Crowson logically has no applicability where “offense” as used in a habitual offender statute refers to actual conduct underlying a prior conviction, as was held in People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736.

Defendant does not raise any constitutional objections which might bar the People from offering any available competent evidence in addition to a judgment of conviction.¹⁵ Official court records, such as a probation report, may well be probative on the issue of the residential character of a prior burglary, assuming any evidentiary objections can be overcome.

The evidence admitted here established that Guillen suffered a prior serious felony conviction of residential burglary.

VI 16

Accordingly, the judgment of each defendant is affirmed.

FOOTNOTES

1.  Not certified for publication.

2.  Section 185 of the Code of Civil Procedure, enacted in 1872, provides: “Every written proceeding in a court of justice in this state shall be in the English language, and judicial proceedings shall be conducted, preserved, and published in no other.”

3.  Although Aguilar discusses the trinary function of in-court interpreters, it does not address whether the right to a “defense” interpreter is derived from the express constitutional right to an interpreter provision or is derived as a necessary corollary from the right to an attorney (Cal. Const., art. 1, § 15).

4.  (See e.g. People v. Carreon (1984) 151 Cal.App.3d 559, 198 Cal.Rptr. 843; People v. Romero (1984) 153 Cal.App.3d 757, 200 Cal.Rptr. 404; In re Dung T. (1984) 160 Cal.App.3d 697, 206 Cal.Rptr. 772; People v. Nieblas (1984) 161 Cal.App.3d 527, 207 Cal .Rptr. 695.)

5.  Implicit is a finding that untranslated court proceedings other than the exchange with the two non-English speaking witnesses occurred while the interpreter was on loan, or for some undisclosed reason the defendant could not understand or hear the questions posed to and the answers of those witnesses even though at least one of them spoke Spanish (the other had a Spanish surname), or defendant was entitled to, but lacked, a Spanish translation of the English interpretation of the non-English speaking witnesses' testimony. The court indicated that the Spanish-speaking ability of defendant's counsel, as to which the record was silent, would have made no difference to its determination since bilingual counsel should not be expected to translate proceedings while functioning as an attorney. (People v. Aguilar, supra, 35 Cal.3d at p. 791, 200 Cal.Rptr. 908, 677 P.2d 1198.)

6.  Often the facts critical to an interpreter claim are going to be outside the record, as in this case, since attorney-client communications and oral proceedings in a non-English language are not preserved in the clerk's or reporter's transcripts. Thus, such claims would be correctly addressed on a petition for writ of habeas corpus, rather than on appeal, so that the factual bases supporting a defendant's assertions may be examined at an evidentiary hearing. (Cf. People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.)

7.  The following exchange occurred prior to the testimony of the Spanish-speaking defense witness called on behalf of Guillen. “MR. STEINFELD [Guillen's counsel]: ․ We call Ricardo Aguilar to the stand. Mr. Aguilar is also going to require an interpreter. THE COURT: All right. Counsel, we have only one interpreter, and if I take the time now to get another one for Mr. Aguilar, we are gonna—it is gonna take five minutes, ten minutes—MR. ARNOLD [Estrada's counsel]: She can handle it. THE COURT: Can we stipulate that Miss Bowen can be the interpreter for all three—Martinez. I am sorry, excuse me I get my head in a rut. [¶] In any event, I am going to have you separately sworn to interpret for Mr. Aguilar, but I want you to speak up so that the defendants can hear everything that you say in both languages.” The following colloquy took place before the same defense witness returned to the stand for further examination. “THE COURT: ․ at all prior hearings involving the use of our interpreter, Ms. Martinez, first of all she has acted by stipulation and agreement of all counsel as the interpreter for each of the defendants and also as the interpreter for the witness Aguilar. Is it agreed that she may continue to act as the interpreter for each of those three persons? MR. WHIPPLE [Guillen's attorney]: Guillen agrees. THE COURT: All right. And, Mr. Whipple, since you weren't here before, what arrangements I made was to have the interpreter seat herself in such a way that all three of the persons, Mr. Guillen, Mr. Estrada and Mr. Aguilar [Guillen's witness], all three of them can hear the interpreter's interpretation from Spanish to English and English to Spanish at the same time. She seats herself in such a way that her voice carries to each of the persons involved, and each of them can hear her as she interprets․” Presumably, Guillen understood the questions put to and answers made by his own witness in Spanish. We note the attorneys' apparent stipulation regarding use of a single interpreter does not dispel the claim of error since “[t]he mere acquiescence by counsel did not waive the right to interpreter assistance” and a valid waiver requires an affirmative showing on the record that the defendant voluntarily and intelligently waived the right (People v. Aguilar, 35 Cal.3d 785, 794, 200 Cal.Rptr. 908, 677 P.2d 1198), which the record does not demonstrate.

8.  The court also commented by way of footnote: “Accuracy is required to protect the integrity of the proceedings as well as the defendant's rights. When no defense interpreter is available, it is impossible for the non-English speaking defendant to check the accuracy or competency of the witness interpreter's translation․” (People v. Aguilar, supra, 35 Cal.3d at p. 793, fn. 10, 200 Cal.Rptr. 908, 677 P.2d 1198.) We believe this is a red herring. To hold that a non-English speaking defendant's constitutional right to a “proceedings” interpreter requires translation of the English interpretation of the testimony of a non-English speaking witness who speaks the same language as the defendant on the ground that it is a check on the “witness” translation would place a non-English speaking defendant in a better position than an English speaking defendant who has no interpreter assistance to verify the accuracy or competency of “witness” interpretation.

9.  The standard of prejudice may differ depending upon whether the impaired interpreter services were “defense” or, “proceedings.”

10.  Implicitly, the court in both People v. Resendes, supra, and People v. Rioz, supra, found that the appellant was entitled to an interpreter acting in a “defense” capacity. In People v. Resendes, supra, 164 Cal.App.3d 812, 210 Cal.Rptr. 609, it appears that the interpreter undertook “defense” interpretation responsibilities for multiple defendants. There, the judge authorized codefendants sharing an interpreter to interrupt the proceedings by raising a hand any time they wanted to communicate with counsel. In People v. Rioz (1984) 161 Cal.App.3d 905, 207 Cal.Rptr. 903, four Spanish speaking codefendants shared a single interpreter through use of earphones and headsets. The court stated: “Under these circumstances it is not realistic to expect defendant Rioz to be able to communicate with his lawyer at any time the need arises․” (Id. at p. 912, 207 Cal.Rptr. 903.)

11.  See for example, People v. Carreon (1984) 151 Cal.App.3d 559, 198 Cal.Rptr. 843 [reversible if record supports an informed speculation that defendant's right to an interpreter prejudiced], In re Dung T. (1984) 160 Cal.App.3d 697, 206 Cal.Rptr. 772 [reversible per se]; People v. Rioz (1984) 161 Cal.App.3d 905, 913–914, 207 Cal.Rptr. 903 [unnecessary to resolve whether reversible per se, reversible under Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, or reversible under Carreon standard].

12.  Not Certified for Publication.

13.  Guillen's attorney unsuccessfully objected to the probation report on the basis of relevancy. The court's ruling on relevancy was correct since it cannot be said that the probation report had no tendency in reason to prove that the prior burglary was of a residence. (See Evid.Code, §§ 351, 210.) However, since the report involved multiple level hearsay, it might have been susceptible to an objection on that ground, but none was interposed. (Evid.Code, § 1200.) Thus, such claim was waived as is any claimed erroneous admission of evidence absent a timely objection or motion to strike or exclude. (Evid.Code, § 353.)

14.  The plea form alone was not sufficient to establish that the burglary was of a residence since it does not state whether the house entered was inhabited. The term “residence” implies inhabitation (People v. O'Bryan (1985) 37 Cal.3d 841, 844–845, 210 Cal.Rptr. 450, 694 P.2d 135) and a house may be uninhabited. (See People v. Cardona (1983) 142 Cal.App.3d 481, 483, 191 Cal.Rptr. 109.)

15.  It is well settled that recidivism statutes prescribing increased punishment for repeat offenders do not place a defendant twice in jeopardy. (Gryger v. Burke (1948) 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683; In re McVickers (1946) 29 Cal.2d 264, 271, 176 P.2d 40.) Moreover, in making sentencing choices, courts routinely consider certain facts relating to a defendant's past conduct which were not facts adjudicated in a prior criminal proceeding. (Pen.Code, § 1170; Cal.Rules of Court, rules 414(d), 421(b).)

16.  Not Certified for Publication.

ABBE, Associate Justice.

STONE, P.J., and GILBERT, J., concur.