People v. Ramirez CA4/1 ( 2015 )


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  • Filed 7/16/15 P. v. Ramirez CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                         D065135
    Plaintiff and Respondent,
    v.                                                         (Super. Ct. No. JCF31279)
    RIGOBERTO GUTIERREZ RAMIREZ,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores,
    Jr., Judge. Affirmed.
    Helen S. Irza, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
    General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, and Lynne G.
    McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
    A jury convicted Rigoberto Gutierrez Ramirez of second degree robbery
    (Pen. Code, § 211)1 and assault with a deadly weapon (§ 245, subd. (a)(1)). Following
    his conviction, the court found that Ramirez had suffered a prior serious felony
    conviction. (§ 667, subd. (d).) The court sentenced Ramirez to three years in prison for
    his robbery conviction, which it doubled under section 667, subdivision (e)(1), for a total
    of six years. The court also sentenced Ramirez to three years in prison on his assault
    conviction, which it doubled (§ 667, subd. (e)(1)) and stayed (§ 654).
    Ramirez appeals. He contends: (1) the evidence was insufficient to support his
    assault conviction; (2) the court erred by instructing the jury with the undefined phrase
    "inherently deadly weapon" in CALCRIM No. 875; (3) the evidence was insufficient to
    support his robbery conviction; (4) the court erred by not instructing the jury sua sponte
    with a unanimity instruction regarding the robbery charge; and (5) the court erred by not
    instructing the jury sua sponte on the defense of necessity. We conclude the evidence
    was sufficient to support Ramirez's assault conviction, the court did not err by using the
    phrase "inherently deadly weapon" in its jury instructions, the evidence was sufficient to
    support Ramirez's robbery conviction, any error in omitting a unanimity instruction was
    harmless, and the court was not required to instruct the jury on the defense of necessity.
    We therefore affirm.
    1      All further statutory references are to the Penal Code unless otherwise indicated.
    2
    FACTS
    In July 2013, Juan German prepared to go to sleep on a park bench in Calexico,
    California. German, a homeless farmworker, carried his belongings in a backpack.
    Another man, later identified as Ramirez, approached German. Ramirez repeatedly said,
    "Where's my stuff? Where's my f-ing pipe?" Ramirez spoke quickly and belligerently,
    and German had difficulty understanding him. Ramirez then grabbed German's backpack
    and proceeded to walk away. German said, "Hey, that's mine," and followed Ramirez.
    German grabbed at Ramirez's right arm, which was holding the backpack, and Ramirez
    threw back his elbow at German.
    A lettuce knife, which German used in his farm work, fell out of the backpack.2
    Both men attempted to grab the knife, but Ramirez reached it first. Ramirez held the
    blade towards German in a threatening manner. German, who had grabbed the backpack,
    left it and ran away, screaming for help. Still holding the knife, Ramirez picked up the
    backpack and gave chase. Ramirez kept asking, "Where is it? Where is it?" As Ramirez
    got closer, German screamed even louder. German eventually reached a police station.
    Ramirez then dropped the backpack, telling German, "Here's your backpack." Ramirez
    left with the knife.
    2      At trial, German explained that a lettuce knife is a type of knife used to harvest
    lettuce and other vegetables. It consists of a curved blade, approximately six or seven
    inches in length, and a four-inch handle.
    3
    Gerardo Cordova, who lived in a nearby apartment building, heard German's
    screams. His wife called police. Although Cordova saw German in the park, he did not
    see Ramirez.
    Police interviewed German, who reported what had happened. The police found
    Ramirez walking along a nearby road. When police approached, Ramirez told them, "I
    did not commit a 211," referencing the Penal Code section on robbery. The police had
    not mentioned a robbery or that section to Ramirez. The police detained Ramirez and
    brought German to his location to identify him. German identified Ramirez as his
    assailant. The police placed Ramirez under arrest and drove him to a police station.
    In a recorded interrogation, Ramirez told police that he had been forced to move
    from another park earlier in the day. During the move, Ramirez said, his backpack had
    been stolen. (The police confirmed that officers on the previous shift had told a group of
    homeless people to move from the park that day; they did not receive a report of a
    missing backpack.) Ramirez said that German's backpack looked similar to his
    backpack. Ramirez said he asked German whose backpack it was and whether he could
    look inside. German refused. Ramirez claimed German's knife then fell out of the
    backpack. Ramirez admitted picking up the knife but denied chasing German. Ramirez
    also admitted that German was scared and ran away screaming, though Ramirez claimed
    not to know why. Ramirez speculated that German was a gang member. Ramirez denied
    robbing German or hurting anyone.
    Later, police transported Ramirez to jail. On the way, Ramirez talked constantly
    about the incident, and the police officer transporting Ramirez had to tell him to "shut
    4
    up." Among other things, Ramirez said "I can't believe he ratted on me, but he will
    probably get subpoenaed and won't show up and the case will be dropped" and "Who said
    that they saw me? Was it that lady at the park? She's drunk and . . . she is not credible."
    The police officer did not believe German or Ramirez was intoxicated or under the
    influence of drugs at the time of the incident. When Ramirez was detained, he no longer
    had the knife. The knife was never located.
    At trial, German, Cordova, and a police officer testified for the prosecution. An
    audiotape of Ramirez's interrogation was played for the jury. Ramirez's counsel
    presented a claim of right defense to the robbery charge, arguing that Ramirez had a good
    faith belief the backpack was his. Ramirez's counsel also argued, among other things,
    that Ramirez's actions did not constitute robbery or assault.
    DISCUSSION
    I
    Ramirez first challenges the sufficiency of the evidence supporting his conviction
    for assault with a deadly weapon. "An assault is an unlawful attempt, coupled with a
    present ability, to commit a violent injury on the person of another." (§ 240.) "Any
    person who commits an assault upon the person of another with a deadly weapon or
    instrument other than a firearm shall be punished . . . ." (§ 245, subd. (a)(1).)
    "To assess the evidence's sufficiency, we review the whole record to determine
    whether any rational trier of fact could have found the essential elements of the crime or
    special circumstances beyond a reasonable doubt. [Citation.] The record must disclose
    substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and
    5
    of solid value—such that a reasonable trier of fact could find the defendant guilty beyond
    a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light
    most favorable to the prosecution and presume in support of the judgment the existence
    of every fact the jury could reasonably have deduced from the evidence. [Citation.]
    'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the
    reversal of a judgment, for it is the exclusive province of the trial judge or jury to
    determine the credibility of a witness and the truth or falsity of the facts upon which a
    determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
    conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for
    insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever
    is there sufficient substantial evidence to support" ' the jury's verdict." (People v.
    Zamudio (2008) 
    43 Cal.4th 327
    , 357 (Zamudio); see People v. Brown (2012)
    
    210 Cal.App.4th 1
    , 7, fn. 2.)
    Ramirez contends the lettuce knife did not constitute a deadly weapon under the
    statute. "As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object,
    instrument or weapon which is used in such a manner as to be capable of producing and
    likely to produce, death or great bodily injury.' [Citation.] Some few objects, such as
    dirks and blackjacks, have been held to be deadly weapons as a matter of law; the
    ordinary use for which they are designed establishes their character as such. [Citation.]
    Other objects, which not deadly per se, may be used, under certain circumstances, in a
    manner likely to produce death or great bodily injury. In determining whether an object
    not inherently deadly or dangerous is used as such, the trier of fact may consider the
    6
    nature of the object, the manner in which it is used, and all other facts relevant to the
    issue." (People v. Aguilar (1997) 
    16 Cal.4th 1023
    , 1028-1029 (Aguilar).)
    "In assault with a deadly weapon, the character of the particular agency employed
    is the substance of the offense. While a knife is not an inherently dangerous or deadly
    instrument as a matter of law, it may assume such characteristics, depending upon the
    manner in which it was used, and there arises a mixed question of law and fact which the
    jury must determine under proper instructions from the trial court." (People v. McCoy
    (1944) 
    25 Cal.2d 177
    , 188 (McCoy).) " 'When it appears . . . that (such) an
    instrumentality . . . is capable of being used in a "dangerous or deadly" manner, and it
    may be fairly inferred from the evidence that its possessor intended on a particular
    occasion to use it as a weapon should the circumstances require, we believe that its
    character as a "dangerous or deadly weapon" may be thus established, at least for the
    purposes of that occasion.' " (Id. at pp. 188-189; see People v. Page (2004)
    
    123 Cal.App.4th 1466
    , 1471 (Page).)
    Here, the nature of the lettuce knife, the manner in which Ramirez used it, and the
    surrounding circumstances show that the knife was a deadly weapon within the meaning
    of section 245. The knife, with a blade six or seven inches in length, was plainly capable
    of inflicting death or great bodily injury. Ramirez held the lettuce knife by its handle in a
    threatening manner with its blade pointed toward German. When German ran away,
    Ramirez pursued him with knife in hand. Ramirez's actions occurred at night, when the
    men were alone, following belligerent words and a scuffle over German's backpack.
    Under these circumstances, the jury could reasonably conclude Ramirez intended to use
    7
    the knife as a deadly weapon, rather than some other purpose. (See Page, supra,
    123 Cal.App.4th at p. 1473.)
    Ramirez points out that Ramirez did not make any stabbing or slashing motions
    with the knife. Such actions, however, were not necessary to establish that the knife was
    a deadly weapon. "To warrant conviction of such offense it was not necessary that the
    prosecution introduce evidence to show that appellant actually made an attempt to strike
    or use the knife upon the person of the [victim]." (McCoy, supra, 25 Cal.2d at p. 189;
    see People v. Vorbach (1984) 
    151 Cal.App.3d 425
    , 429.) "[A]n instrument can be a
    deadly weapon even if it is not actually used with deadly force." (Page, supra,
    123 Cal.App.4th at p. 1472.) The details of the chase also would not prevent a reasonable
    jury from finding that the knife was a deadly weapon, contrary to Ramirez's assertion.
    Unlike People v. Beasley (2003) 
    105 Cal.App.4th 1078
    , 1087-1088, on which Ramirez
    relies, the evidence showed that the weapon here—a knife with a blade six or seven
    inches in length—could have inflicted death or serious injury on German.
    Moreover, to the extent Ramirez contends the evidence was insufficient to prove
    his actions constituted an assault (see Page, supra, 123 Cal.App.4th at p. 1472), his
    contention is unpersuasive. "Although temporal and spatial considerations are relevant to
    a defendant's 'present ability' under section 240, it is the ability to inflict injury on the
    present occasion that is determinative, not whether injury will necessarily be the
    instantaneous result of the defendant's conduct." (People v. Chance (2008) 
    44 Cal.4th 1164
    , 1171 (Chance).) "One may commit an assault without making actual physical
    contact with the person of the victim; because the statute focuses on use of a deadly
    8
    weapon or instrument . . . , whether the victim in fact suffers any harm is immaterial."
    (Aguilar, 
    supra,
     16 Cal.4th at p. 1028.) "In [one early case], the defendant approached
    within seven or eight feet of the victim with a raised hatchet, but the victim escaped
    injury by running to the next room and locking the door. [The defendant] committed
    assault, even though he never closed the distance between himself and the victim, or
    swung the hatchet." (Chance, supra, 44 Cal.4th at p. 1174, citing People v. Yslas (1865)
    
    27 Cal. 630
    , 631, 633-634.) The evidence here shows that Ramirez grabbed the lettuce
    knife, held it towards German in a threatening manner, and chased German across the
    park while German screamed in terror. This evidence is sufficient to support Ramirez's
    conviction for assault with a deadly weapon.
    II
    Ramirez next contends the court erred by instructing the jury with the phrase
    "inherently deadly" as used in CALCRIM No. 875. The instruction used by the court
    reads, in relevant part, as follows: "A deadly weapon other than a firearm is any object,
    instrument, or weapon that is inherently deadly or one that is used in such a way that it is
    capable of causing and likely to cause death or great bodily injury."
    "In considering a claim of instructional error we must first ascertain what the
    relevant law provides, and then determine what meaning the instruction given conveys.
    The test is whether there is a reasonable likelihood that the jury understood the
    instructions in a manner that violated the defendant's rights. [Citation.] We determine
    the correctness of the jury instruction[s] from the entire charge of the court, not from
    9
    considering only parts of an instruction or one particular instruction." (People v. Smith
    (2008) 
    168 Cal.App.4th 7
    , 13.)
    Ramirez claims this phrase does not adequately inform the jury of the distinction
    between weapons that are deadly per se, i.e., those that are designed to be deadly, and
    weapons that are deadly only under the circumstances of a given case. (See, e.g.,
    Aguilar, 
    supra,
     16 Cal.4th at pp. 1028-1029.)
    We conclude the instruction adequately informs the jury of the two categories of
    deadly weapons and there is no reasonable likelihood the jury interpreted the instruction
    in a manner that misdescribed the elements of the offense. The phrase "inherently
    deadly" is juxtaposed against the requirement that noninherently deadly weapons be
    "used in such a way that is capable of causing and likely to cause death or great bodily
    injury." This juxtaposition shows that "inherently deadly" weapons are those that are
    deadly regardless of the manner of their use, i.e., those whose "ordinary use for which
    they are designed establishes their character as such." (Aguilar, supra, 16 Cal.4th at
    p. 1029.) We therefore disagree with Ramirez's speculation that the court's jury
    instruction would confuse a jury into believing that an axe or rusty nail is "inherently
    deadly" because they have essential characteristics that are capable of producing death
    (e.g., a sharp edge). Objects that are only capable of producing death fall into the second
    category, and are not "inherently deadly," as the court's jury instruction explains.
    III
    Ramirez argues the evidence was insufficient to convict him of robbery under
    section 211. Our standard of review for sufficiency of the evidence remains the same.
    10
    (See part I, ante; People v. Zamudio, 
    supra,
     43 Cal.4th at p. 357.) " 'Robbery is the
    taking of "personal property in the possession of another against the will and from the
    person or immediate presence of that person accomplished by means of force or fear and
    with the specific intent permanently to deprive such person of such property." [Citation.]'
    [Citations.] 'If the other elements are satisfied, the crime of robbery is complete without
    regard to the value of the property taken.' " (People v. Clark (2011) 
    52 Cal.4th 856
    , 943.)
    The evidence here was sufficient to support Ramirez's robbery conviction.
    Ramirez took German's backpack from German's immediate possession, walked away
    with the backpack, swung his elbow back at German when German attempted to retrieve
    it, and wielded German's knife against him when German confronted Ramirez. These
    facts show that Ramirez took German's backpack from him, against his will, by means of
    force or fear. Ramirez's intent to permanently deprive German of his backpack can
    reasonably be inferred by Ramirez's attempt to walk away with the backpack after he
    initially took it. The fact that Ramirez subsequently dropped the backpack does not
    negate this reasonable inference. (See People v. Hill (1998) 
    17 Cal.4th 800
    , 852 ["[O]nce
    there has been a taking, 'it is no defense that the property taken was restored, even though
    this occurs almost immediately.' "].) Similarly, although Ramirez presented a claim of
    right defense based on Ramirez's alleged belief the backpack was his (see People v.
    Tufunga (1999) 
    21 Cal.4th 935
    , 950), the jury's verdict shows it disbelieved Ramirez.
    We may not reweigh this credibility determination on appeal. (See Zamudio, 
    supra,
    43 Cal.4th at p. 357; People v. Snow (2003) 
    30 Cal.4th 43
    , 66.)
    11
    The evidence was also sufficient to support Ramirez's robbery conviction based on
    the knife alone. In addition to taking German's knife while it was in the backpack,
    Ramirez picked up the knife after it fell from German's backpack. Ramirez held the knife
    towards German in a threatening manner and, unlike the backpack, did not return it.
    Ramirez's failure to return the knife, as well as his earlier action walking away with
    German's backpack, shows that Ramirez intended to permanently deprive German of the
    knife throughout the incident. We therefore disagree with Ramirez's claim that his intent
    to deprive could only have arisen after he grabbed the knife. (See People v. Bradford
    (1997) 
    14 Cal.4th 1005
    , 1055-1056.)
    IV
    Given the evidence, as we have just discussed, that Ramirez's robbery conviction
    could rest on the taking of either German's backpack or his knife, Ramirez argues that the
    court erred by not providing a unanimity instruction sua sponte. "When an accusatory
    pleading charges the defendant with a single criminal act, and the evidence presented at
    trial tends to show more than one such unlawful act, either the prosecution must elect the
    specific act relied upon to prove the charge to the jury, or the court must instruct the jury
    that it must unanimously agree that the defendant committed the same specific criminal
    act. [Citation.] The duty to instruct on unanimity when no election has been made rests
    upon the court sua sponte." (People v. Melhado (1998) 
    60 Cal.App.4th 1529
    , 1534
    (Melhado).)
    The Attorney General contends the prosecution elected to proceed on the basis of
    the backpack alone. In order for an election to be effective, a prosecutor must "directly
    12
    inform the jurors of his election and of their concomitant duties . . . ." (Melhado, supra,
    60 Cal.App.4th at p. 1536.) Here, the prosecution made no such election. While the
    prosecutor discussed the taking of the backpack, he never informed the jury it was the
    only basis for the robbery charge. Moreover, in closing arguments, the prosecution
    expressly argued that taking the knife constituted robbery. For example, the prosecution
    rebutted Ramirez's statement to police, " 'Because I didn't do a 211. I didn't take nothing
    from nobody,' " by stating, "He did take the knife. Really, he did take the knife."
    Similarly, the prosecution explained, "We know that the defendant had the knife because
    he admitted to holding it. Then he runs away and we never see the knife again. I think
    that is pretty self-explanatory." To rebut Ramirez's claim of right defense, the
    prosecution pointed directly to the knife: "Either way he knew that knife did not belong
    to him. He knew the backpack did not belong to him. So those two items alone, how is
    there a claim of right to either of those two things?" The Attorney General's contention
    that the prosecution elected to proceed based only on the backpack is unpersuasive.
    However, even assuming the court should have given a unanimity instruction
    under these circumstances (cf. People v. Riel (2000) 
    22 Cal.4th 1153
    , 1199), any error
    was harmless. "Failure to give a unanimity instruction is governed by the harmless error
    standard of Chapman v. California (1967) 
    386 U.S. 18
    , 24, which requires the error to be
    harmless beyond a reasonable doubt." (People v. Thompson (1995) 
    36 Cal.App.4th 843
    ,
    853 (Thompson).) "Where the record provides no rational basis, by way of argument or
    evidence, for the jury to distinguish between the various acts, and the jury must have
    believed beyond a reasonable doubt that defendant committed all acts if he committed
    13
    any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record
    indicates the jury resolved the basic credibility dispute against the defendant and
    therefore would have convicted him of any of the various offenses shown by the
    evidence, the failure to give the unanimity instruction is harmless." (Ibid.)
    Here, to the extent there was conflicting evidence of Ramirez's guilt, it rested on
    an assessment of Ramirez's credibility when he told police he thought German's backpack
    belonged to him. Ramirez's defense to robbery was based on a claim of right, and the
    court instructed the jury on the elements of that defense. During closing argument,
    Ramirez's counsel focused exclusively on that defense. Ramirez's counsel did not
    distinguish the facts surrounding the knife or present any separate defense to robbery
    based on the knife. The prosecution, for its part, interpreted Ramirez's claim of right
    defense as applying to both the backpack and the knife. The jury's guilty verdict shows it
    rejected Ramirez's version of the events and his claim of right defense. Under these
    circumstances, "the jury resolved the basic credibility dispute against the defendant and
    therefore would have convicted him of any of the various offenses shown by the
    evidence," and any error was harmless. (Thompson, supra, 36 Cal.App.4th at p. 853.)
    Ramirez claims he presented a separate defense to robbery based on the knife, i.e.,
    that there was no union of act and intent. We disagree. Although the jury was instructed
    that robbery requires the union of act and intent, Ramirez did not present a defense based
    on that principle to the jury. As we have noted, Ramirez presented a claim of right
    defense as to the backpack and did not present a separate defense as to the knife. Without
    some indication in the record that the jury could have distinguished between robbery
    14
    based on the knife and robbery based on the backpack, the omission of a unanimity
    instruction was harmless beyond a reasonable doubt. (Thompson, supra, 36 Cal.App.4th
    at p. 853.) We find unpersuasive Ramirez's contention that the length of the jury's
    deliberations, or its request to have German's testimony read back, show that the error
    was prejudicial. "[O]n the record before us, we cannot speculate that this implied the jury
    believed it was a close case or it has some question about whom to believe." (People v.
    Tamborrino (1989) 
    215 Cal.App.3d 575
    , 587.)
    V
    Ramirez contends the court erred by not instructing the jury sua sponte on the
    defense of necessity. "A trial court has a sua sponte duty to instruct regarding a defense
    if there is substantial evidence to support the defense and it is not inconsistent with the
    defendant's theory of the case. [Citation.] In deciding whether there is substantial
    evidence, 'the trial court does not determine the credibility of the defense evidence, but
    only whether "there was evidence which, if believed by the jury, was sufficient to raise a
    reasonable doubt . . . ." ' " (People v. Saavedra (2007) 
    156 Cal.App.4th 561
    , 567.) "On
    review, we determine independently whether substantial evidence to support a defense
    existed." (People v. Shelmire (2005) 
    130 Cal.App.4th 1044
    , 1055.)
    "To justify an instruction on the defense of necessity, there must be evidence
    sufficient to establish that defendant violated the law (1) to prevent a significant evil,
    (2) with no adequate alternative, (3) without creating a greater danger than the one
    avoided, (4) with a good faith belief in the necessity, (5) with such belief being
    15
    objectively reasonable, and (6) under circumstances in which he did not substantially
    contribute to the emergency." (People v. Pepper (1996) 
    41 Cal.App.4th 1029
    , 1035.)
    Ramirez contends the evidence supports an instruction on the defense of necessity
    to both the assault charge and the robbery charge. Ramirez argues that he was compelled
    by necessity to grab the knife when it fell from German's backpack. We disagree. Even
    assuming the other elements are supported by substantial evidence, Ramirez has not
    shown that substantial evidence supports the proposition that Ramirez had an objectively
    reasonable belief that he was preventing a significant evil by taking German's knife and
    assaulting him with it.
    Given German's version of the events (on which Ramirez appears to rely for
    purposes of this defense), when the knife fell out of the backpack, any reasonable person
    in Ramirez's position would have realized the knife (and thus likely the backpack) was
    not his. German's mere act of picking up his own knife did not pose the threat of
    significant evil that needed to be prevented. When German attempted to grab the knife,
    any reasonable person would have seen this action as an attempt to regain his own
    property, not a prelude to offensive violence. Under these circumstances, a reasonable
    person would not have believed it was necessary to grab German's knife and wield it
    against him to prevent a significant evil. Any reasonable person would have viewed
    retreat, or some other means of de-escalating the situation, as a reasonable alternative.
    Under Ramirez's version of the events, any belief in necessity was even more
    unreasonable. Ramirez told police he asked German whether he could look inside the
    backpack. German refused, and the knife fell out. While German may have grabbed for
    16
    the knife at that point, there was no indication he sought to use it offensively. Under
    these circumstances as well, a reasonable person would not have believed it was
    necessary to grab German's knife and wield it against him to prevent a significant evil.
    We conclude there was no substantial evidence supporting a defense of necessity.
    The court did not err by not instructing the jury on such a defense. (See People v.
    Saavedra, supra, 156 Cal.App.4th at p. 567.)
    DISPOSITION
    The judgment is affirmed.
    BENKE, Acting P. J.
    WE CONCUR:
    HALLER, J.
    AARON, J.
    17