People v. Martinez ( 2014 )

Filed 6/6/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057976
v. (Super.Ct.No. FMB1200197)
DENNIS TERRY MARTINEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Daniel W.
Detienne, Judge. Reversed with directions.
Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Melissa Mandel, and Meredith S. White, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Dennis Terry Martinez pled guilty to leaving the scene of an accident
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(count 1; Veh. Code, § 20001, subd. (a))1 and admitted the offense constituted a violation
of his probation. In return for his plea, the People agreed to the low term of two years’
incarceration on count 1 and a concurrent midterm of two years on his violation of
probation. The sentencing court later indicated it would not permit the plea to the agreed
upon term. The court offered to allow defendant to withdraw his plea and set the matter
for a preliminary hearing or proceed with the plea with the understanding the court would
sentence defendant to the midterm of three years’ imprisonment with a concurrent three-
year term for the violation of probation. Defense counsel indicated defendant’s
acquiescence to the court’s proposed disposition.2
The court sentenced defendant to the three-year term, but reserved jurisdiction on
the issue of victim restitution. After a contested restitution hearing, the court ordered
victim restitution in the amount of $425,654.63. On appeal, defendant contends the court
abused its discretion in awarding victim restitution for the injuries sustained by the victim
because defendant did not plead to any criminal offense regarding the collision which
caused those injuries and no factual determination was made that he was responsible for
the accident. We reverse the restitution award. The matter is remanded to allow the
People to file a motion, in their discretion, for restitution in which they will bear the
burden of proving an amount, if any, which reflects the degree to which the victim’s
1 All further statutory references are to the Vehicle Code unless otherwise
indicated.
2 No new plea was taken either orally or in writing to reflect the new, agreed upon
disposition. Defendant did not personally indicate his acceptance of the new term.
2
injuries were exacerbated, if at all, by defendant’s flight. In all other respects, the
judgment is affirmed.
FACTS AND PROCEDURAL HISTORY3
On April 26, 2012, at approximately 6:30 p.m., defendant, driving his vehicle, and
the 12-year-old victim, riding on a scooter, collided in the street. Defendant stopped his
vehicle and checked on the victim. The victim’s mother came screaming over to her son.
Defendant fled when he discovered the victim’s injuries might be life threatening.
Defendant was on probation and driving without a license.
The victim was taken to the Intensive Care Unit (ICU) of Loma Linda University
Medical Center (LLUMC). He sustained multiple broken facial bones and a serious head
injury resulting in brain swelling.
Within 24 hours of investigation, officers discovered defendant’s identity.
Defendant voluntarily came forward thereafter. He admitted knowing that leaving the
scene of the accident was a criminal offense. Defendant admitted ingesting medical
grade marijuana at 8:00 a.m. the day of the accident, but said he no longer felt the effects
by 11:00 a.m. Defendant maintained the collision was an accident.
After defendant’s plea, a probation report prepared for sentencing recommended
defendant be sentenced to the upper term of four years, conflicting with the disposition
agreed upon in the plea agreement. Defendant’s felony probation had been previously
3 The parties stipulated the factual basis for the plea was contained in the felony
complaint and police report. We take a portion of our factual recitation from those
sources.
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revoked once.
The probation officer noted the victim had been released from LLUMC’s ICU
after two weeks. The victim was transferred to the children’s rehabilitation center in
Orange County where he had since remained. The victim had no short-term memory and
was unable to walk without assistance. The victim was relearning to walk and talk. It
was anticipated the victim would undergo 12 weeks of intensive neurological therapy.
Defendant had been uninsured at the time of the collision. The bill for the victim’s stay
at LLUMC alone was $500,000. The victim’s mother’s insurance deductible was
$10,500.
The victim’s mother made a statement at defendant’s sentencing hearing. She
noted “The fact that my son collided with the vehicle was an accident.” The victim’s
mother indicated the victim had “multiple facial fractures, a fractured clavicle[,] and was
diagnosed with traumatic brain injury.” The victim suffered brain swelling for which
doctors had to insert a brain swelling monitor in his skull. The victim had been moved to
Orange County on May 11, 2012, and was sent home after five weeks.
Subsequent to sentencing, the parties briefed the issue of whether defendant could
be ordered to pay restitution for the medical costs incurred by the victim as a result of the
collision. The People noted the victim’s bill for his stay at LLUMC alone was
$425,654.63. At the contested restitution hearing, the court decided to follow the
decision in People v. Rubics (2006) 136 Cal.App.4th 452 (Fourth Dist., Div. One)
(Rubics), which held that a defendant convicted of fleeing the scene of an accident could
be ordered to pay restitution for costs incurred by the victim as a result of the collision.
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The court continued the matter for a hearing on the amount of restitution to order.
Counsel filed a stipulation in the amount of $425,654.63 for a victim restitution order.
The stipulation reserved defendant’s right to appeal the court’s determination it could
order victim restitution for the results of the accident. The court granted victim
restitution in the amount stipulated.
DISCUSSION
Defendant contends the court erred in following Rubics because decades of
precedent have characterized the illegal act of hit-and-run as fleeing the scene, not
causing the actual collision. Thus, because defendant was not convicted for any offense
involving responsibility for the actual accident and no factual determination of his
responsibility for the collision or the victim’s injuries has been made, the court erred in
ordering restitution to the victim for treatment of the injuries he received as a result of the
accident. We agree.
We review a trial court’s order of restitution for abuse of discretion. (People v.
Giordano (2007) 42 Cal.4th 644, 663.) “While we review all restitution orders for abuse
of discretion, we note that the scope of a trial court’s discretion is broader when
restitution is imposed as a condition of probation.” (Ibid., fn. 7.) “It is the intent of the
Legislature that a victim of crime who incurs an economic loss as a result of the
commission of a crime shall receive restitution directly from a defendant convicted of
that crime.” (Pen. Code, § 1202.4, subd. (a)(1).)
Penal Code “section 1202.4 contains no provision that permits an award of
restitution for losses caused by uncharged crimes when the defendant is sentenced to state
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prison.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1248.) The rationale that
restitution may be imposed for economic loss not directly resulting from the commission
of a crime for which a defendant has been convicted “is inapplicable to a nonprobationary
sentence, in which the broad discretion to impose probationary conditions does not exist.”
(Ibid.) “[W]hen a defendant is sentenced to state prison, [Penal Code] section 1202.4
limits restitution to losses caused by the criminal conduct for which the defendant was
convicted.” (Id. at p. 1246 [Remanding for deletion a restitutionary award ordered for
acts occurring before the crimes for which the defendants were convicted].)
“The gravamen of a section 20001 offense . . . is not the initial injury of the
victim, but leaving the scene without presenting identification or rendering aid. Thus, a
plea of guilty to a ‘hit-and-run’ offense admits responsibility for leaving the scene but not
for causing injury. Restitution is proper only to the extent that the victim’s injuries are
caused or exacerbated by the offender’s leaving the scene.” (People v. Escobar (1991)
235 Cal.App.3d 1504, 1508 [Restitutionary award of $2,000 for personal injuries
resulting in lost wages and out of pocket expenses in a hit-and-run case reversed as
“tantamount to an assignment of civil liability in violation of [defendant’s] civil due
process rights.”]; accord People v. Valdez (2010) 189 Cal.App.4th 82, 85, 90 [Noting this
“‘decisional law that unequivocally holds that the purpose of section 20001, subdivision
(a) is to punish “not the ‘hitting’ but the ‘running’”’”]; People v. Wood (2000) 83
Cal.App.4th 862, 866; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1340
[declining to follow Rubics]; People v. Carbajal (1995) 10 Cal.4th 1114, 1124; contra.
Rubics, supra.)
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The court below understandably relied on Rubics in rendering its judgment that
defendant could be ordered to pay restitution for the effects of the collision. (McCallum
v. McCallum (1987) 190 Cal.App.3d 308, 315, fn. 4 [“As a practical matter, a superior
court ordinarily will follow an appellate opinion emanating from its own district even
though it is not bound to do so.”].) Nevertheless, we find Rubics factually
distinguishable from the instant case. Moreover, to the extent Rubics could be viewed as
binding on the court below, we disagree with its holding. Unlike the lower court, we are
not bound to follow Rubics. (Fenelon v. Superior Court (1990) 223 Cal.App.3d 1476,
1483, abrogated on another ground in Hagberg v. California Federal Bank (2004) 32
Cal.4th 350, 368.) We find that Rubics is an anomaly in an otherwise “unbroken line of
cases stretching back more than 50 years.” (People v. Valdez, supra, 189 Cal.App.4th at
pp. 85, 89.) Thus, we hold that a court cannot order a defendant pay victim restitution
when sentenced to prison for the effects of a collision, not exacerbated by his leaving,
when the defendant is solely convicted of fleeing the scene and no factual predicate for
the defendant’s responsibility for the accident can be found in the record. (People v.
Escobar, supra, 235 Cal.App.3d at p. 1509 [“Restitution is proper only to the extent that
the victim’s injuries are caused or exacerbated by the offender’s leaving the scene.”].)
In the first instance, Rubics is distinguishable from the present case for a number
of reasons. First, much of Rubics’s analysis of the issue was premised on the fact that, in
its case, the defendant had not only been convicted of fleeing the scene (§ 20001, subd.
(a)), but had also admitted an allegation under section 20001, subdivision (b)(2), that the
accident had resulted in death. (Rubics, supra, 136 Cal.App.4th at p. 454.) Rubics noted
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one of the elements of the crime of which the defendant pled guilty required that it
resulted in the death of any person. (Id. at p. 458.) It noted the jury instruction for the
offense reflected knowing involvement in an accident resulting in the death of another
person. (Ibid.) It summarized its analysis by noting the defendant’s “involvement in an
accident causing [] death is an element of his felony hit-and-run offense.” (Ibid.) Here,
defendant did not admit an allegation the accident resulted in death because no such
allegation was charged as no one was killed.
Second, the restitution awarded in this case was of a different kind and in a much
larger amount than that awarded in Rubics. The lower court in Rubics awarded $44,414
to the victim’s family for funeral expenses. (Rubics, supra, 136 Cal.App.4th at p. 456.)
Here, the court awarded $425,654.63, apparently for the victim’s stay at LLUMC. Here,
it would be incongruous to apply the Rubics rule when the Rubics case involved the death
of the victim while the victim in the instant case did not die. In other words, a defendant
should not benefit from the fact that the victim in his case has died, thereby resulting in a
lesser amount of victim restitution than if that victim had lived, but required extended,
expensive hospitalization and care.
Third, there was a factual predicate for determining the defendant’s fault in the
accident at issue in Rubics. The defendant in Rubics admitted to smoking copious
amounts of marijuana and drinking five beers before the collision. (Rubics, supra, 136
Cal.App.4th at p. 455.) The defendant failed to stop at a stop sign, made an unsafe left
turn, and collided with the victim’s motorcycle. (Id. at pp. 455, 462.) The accident
investigator determined the defendant caused the accident by failing to yield to the
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victim. (Id. at p. 462.) The defendant admitted leaving the scene of the accident
“because he was afraid that he was going to be arrested for driving under the influence.”
(Id. at p. 455.) Thus, the defendant in Rubics effectively admitted culpability for the
collision and his responsibility had also been independently determined.
We are in no way here making any factual determination as to whether defendant
was responsible for the collision which resulted in the victim’s injuries and damages.
Nevertheless, we note that no evidence below was adduced that defendant bore any
culpability for the collision itself or that his flight exacerbated the injuries to the victim.
The victim apparently collided with the defendant’s vehicle while riding his scooter in
the street. Although defendant admitted to using marijuana, he reported having done so
at 8:00 a.m. on the day of the accident. He indicated he had stopped feeling its effects by
11:00 a.m. on that day. The collision occurred at 6:30 p.m., 10 and a half hours after
using the intoxicant and seven and a half hours after its effects had worn off. Both
defendant and the victim’s mother described the collision as an accident.
Indeed, in People v. Woods (2008) 161 Cal.App.4th 1045, the court distinguished
Rubics on this very basis, i.e., that the fleeing driver may only be held responsible “‘for
the damages he or she has caused by being involved in the accident itself.’ [Citation.]”
(Id. at p. 1053.) Similarly, the court in Corenbaum v. Lampkin, supra, 215 Cal.App.4th
1308, observed “[t]he occurrence of an injury accident is a condition precedent to the
imposition of duties upon the driver under [section] 20001, subdivision (a) . . ., but is not
an element of the crime . . . . [Citation.]” (Id. at p. 1340.) “To the extent that [Rubics]
suggested that a conviction under [section] 20001, subdivision (a) is based in part on the
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defendant’s causing or being involved in an injury accident, we decline to follow it . . . .
(Id. at p. 1341, fn. 22.) Here, there was no evidence defendant caused the accident or
exacerbated the victim’s injuries by fleeing.
Although we find the decision in Rubics factually distinguishable from the present
case, we are also cognizant of the broad language in Rubics which would appear to make
its holding applicable to restitution for any damages sustained by a victim as a result of a
hit and run regardless of the facts. Indeed, Rubics held that “although a primary focus of
section 20001 may be the act of leaving the scene, a conviction also acknowledges the
fleeing driver’s responsibility for the damages he or she has caused by being involved in
the accident itself.” (Rubics, supra, 136 Cal.App.4th at p. 459, italics added.) Similarly,
the court held that “because an element of the crime of felony hit and run under section
20001, subdivisions (a) and (b)(2) is a defendant’s involvement in an accident resulting in
the injury or death of another, restitution is proper in such a situation because the loss
was incurred as a result of the commission of the crime.” (Id. at p. 454, italics added.)
Thus, the expansive language of Rubics’s holding would appear to give trial courts broad
discretion to order victim restitution for any damages sustained in a hit-and-run collision
regardless of whether the defendant has been convicted of any offense involving his
culpability in the collision, without any evidence of his responsibility for the accident,
without any evidence that his flight exacerbated the victim’s injuries, and in any amount.
We disagree with this holding.
Although Rubics acknowledged two cases cited to it by defendant which directly
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contradict its own holding, the court did not distinguish or disagree with either.4 Indeed,
the court declined to discuss those cases, or any of the others establishing the “unbroken
line of cases stretching back more than 50 years” which ran contrary to its holding.
(People v. Valdez, supra, 139 Cal.App.4th at p. 89; Rubics, supra, 136 Cal.App.4th at pp.
458-459.) Instead, Rubics relied primarily on the decision of our Supreme Court in
People v. Carbajal, supra, 10 Cal.4th 1114. (Rubics, supra, at pp. 459-461.)
In Carbajal, the California Supreme Court held “it is within the trial court’s
discretion in [] a [hit-and-run] case to condition probation on payment of restitution to
the owner of the property damaged in the accident from which the defendant unlawfully
fled. A restitution condition in such a case can be reasonably related to the offense
underlying the conviction and can serve the purposes of rehabilitating the offender and
deterring future criminality.” (People v. Carbajal, supra, 10 Cal.4th at p. 1119, italics
added.) Carbajal acknowledged “that in the context of the hit-and-run statute, the
restitution condition may relate to conduct that is not in itself necessarily criminal, i.e.,
the probationer’s driving at the time of the accident.” (Id. at p. 1123 [fn. omitted].)
Nevertheless, the court held that “a trial court, in the proper exercise of its discretion,
may condition a grant of probation for a defendant convicted of fleeing the scene of an
accident on payment of restitution to the owner of the property damaged in the accident.”
(Id. at pp. 1126-1127, italics added.)
4 The court noted the defendant had exposited both People v. Escobar, supra, 235
Cal.App.3d at p. 1509, and People v. Wood (2000) 83 Cal.App.4th 862, 866, in support of
his contention the court’s ordered restitution should be reversed. (Rubics, supra, 136
Cal.App.4th at pp. 458-459.)
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Of course, the primary difference between Carbajal and Rubics is the former court
permitted victim restitution for a collision in a hit-and-run case, regardless of any
determination of the defendant’s culpability in the collision itself, only when it was
ordered as a condition of probation. (People v. Carbajal, supra, 10 Cal.4th at pp. 1119,
1126-1127.) In Rubics, the court permitted such victim restitution in a case in which the
defendant was sentenced to prison. (Rubics, supra, 136 Cal.App.4th at p. 454.) Rubics
acknowledged this difference, but found the policy reasons for permitting an order of
such restitution in a probation case did not differ from one in which the court sentenced a
defendant to prison. (Id. at pp. 459-461.)
Rubics discerned Carbajal’s overall approval of victim restitution where the
damages were reasonably related to the accident. (Rubics, supra, 136 Cal.App.4th at p.
460.) Rubics observed that Carbajal concluded restitution is related to the goal of
deterring future criminality which the restitution ordered in Rubics also served. (Id. at p.
461.) It also noted Carbajal found restitution ““an effective rehabilitative penalty
because it forces the defendant to confront, in concrete terms, the harm his actions have
caused.”’” [Citations.]” (Ibid.) 5 Thus, Rubics found Carbajal supported “the
conclusion that the court’s restitution order was proper in this case.” (Ibid.)
However, an examination of Carbajal itself reveals the fact that the underlying
court had ordered restitution as a condition of probation was not simply a factor in its
5 Though, notably, Carbajal made all these determinations within the People v.
Lent (1975) 45 Cal.3d 481, framework analysis for determining whether a term or
condition of probation is appropriate. (People v. Carbajal, supra, 10 Cal.4th at p. 1124.)
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determination of whether such an order was appropriate, but the factor. Carbajal
observed “California courts have long interpreted the trial courts’ discretion to
encompass the ordering of restitution as a condition of probation even when the loss was
not necessarily caused by the criminal conduct underlying the conviction.” (People v.
Carbajal, supra, 10 Cal.4th at p. 1121, italics added.) As a condition of probation
“[t]here is no requirement the restitution order be limited to the exact amount of the loss
in which the defendant is actually found culpable, nor is there any requirement the order
reflect the amount of damages that might be recoverable in a civil action.” (Ibid.)
Carbajal disagreed with the defendant’s contention a court could not order victim
restitution for losses which did not result from the defendant’s criminal acts because the
statutory scheme could not “‘be construed to limit the authority of the court to grant or
deny probation or provide conditions of probation.’ [Citation.]” (People v. Carbajal,
supra, 10 Cal.4th at p. 1122.) Thus, it concluded that nothing in constitutional or
statutory law “purports to limit or abrogate the trial court’s discretion . . . to order
restitution as a condition of probation where the victim’s loss was not the result of the
crime underlying the defendant’s conviction, but where the trial court finds such
restitution will serve one of the purposes” of reformation or rehabilitation inherent in a
decision to grant probation. (Ibid., italics added.) The court spent the remainder of its
opinion analyzing whether the ordered victim restitution was appropriate within the
context of the Lent framework for determining the propriety of conditions of probation.
(Id. at pp. 1122-1127.) Therefore, Carbajal can in no way be construed as authority for
the proposition that victim restitution may be ordered in a hit-and-run case for a collision
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for which the defendant has not been convicted of any criminal offense and no evidence
supports the defendant’s culpability for the collision or exacerbation of the victim’s
injuries due to defendant’s flight.
Indeed, Rubics itself acknowledged that “[a]t first blush, the Carbajal decision
does not appear helpful because courts have far greater leeway in selecting appropriate
restitution as a condition of probation. Our Supreme Court has observed that a trial court
has broad discretion to impose probation conditions to foster rehabilitation and protect
public safety. [Citation.]” (Rubics, supra, 136 Cal.App.4th at p. 459.) In fact, as noted
above, it has long been acknowledged that courts retain broader discretion to order victim
restitution when it is a condition of probation. (People v. Giordano, supra, 42 Cal.4th at
p. 663, fn. 7.) As Rubics further noted, the discretion afforded courts in prescribing
conditions of probation is broad “because probation is an ‘“‘act of clemency and grace,’”’
not a matter of right. [Citation.] ‘[T]he granting of probation is not a right but a
privilege, and if the defendant feels that the terms of probation are harsher than the
sentence for the substantive offense[,] he is free to refuse probation.’ [Citations.]
Because a defendant has no right to probation, the trial court can impose probation
conditions that it could not otherwise impose, . . . It is not limited to damages
specifically caused by the crime of which the defendant was convicted.” (Rubics, at pp.
459-460, italics added.)
Here, however, we are not discussing a condition of probation. Rather, the court
ordered defendant to pay victim restitution for the collision when he was not convicted of
any offense involving responsibility for the collision, no evidence in the record appears to
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indicate any culpability on his part in the collision, no evidence demonstrates the victim’s
injuries were exacerbated due to defendant’s flight, and the court sentenced defendant to
three years’ imprisonment. Defendant was not afforded the freedom to refuse the ordered
restitution even if he believed it was harsher than the sentence for the substantive offense
because he was already sentenced for the substantive offense. Indeed, as Rubics further
observed “[a]n entirely different set of constitutional considerations comes into play
where, as here, the defendant is sentenced to prison. The constitutional guaranty of a jury
trial and due process requires that the jury decide all material issues in support of the
charges. [Citations.] A corollary to this guaranty is that a defendant will not be punished
for a crime for which a jury has not determined the defendant’s guilt.” (Rubics, supra,
136 Cal.App.4th at p. 460.) Here, defendant was not afforded any constitutional
protections in what amounted to a judicial determination of guilt and liability for the
collision. The ordered $425,654.63 in victim restitution would, to many people, be
deemed harsh punishment in and of itself.
Indeed, if the People believed defendant guilty for causing the collision, they
could have charged defendant for reckless driving (§ 23103), driving under the influence
(§ 23152, subd. (a)), or some other charge which would have incorporated at least some
culpability for the collision and not just fleeing afterward. If defendant was convicted of
such a charge, victim restitution for the collision would then be appropriate. In fact, even
if defendant was not convicted of such a charge, but the plea agreement included a
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Harvey6 waiver, restitution could still be imposed for the consequences of the collision.
(People v. Snow (2012) 205 Cal.App.4th 932, 937, fn. 5.) Here, although defendant
executed a Harvey waiver as part of his plea, there were no other charges in the felony
complaint and defendant’s plea did incorporate any agreement by the People not to file
any further charges.
The People might argue that by fleeing, defendant ensured any evidence of his
culpability in the collision was thereby eradicated. (People v. Carbajal, supra, 10 Cal.4th
at p. 1124 [“By leaving the scene of the accident, the fleeing driver deprives the
nonfleeing driver of his or her right to have responsibility for the accident adjudicated in
an orderly way according to the rules of law.”) However, a review of the contents of the
police report reveal this is not the case.
At least two individuals witnessed the accident: the individual who gave police a
description of defendant’s vehicle and the victim’s mother. If defendant was driving
recklessly, evidence from these two sources could have been adduced to establish such.
As noted above, mother indicated it was the victim who collided with defendant.
Defendant likewise indicated the victim hit defendant’s vehicle when the victim failed to
stop. Moreover, defendant’s vehicle was found within 24 hours of the accident,
apparently before any repairs could have been or were made. Defendant’s vehicle had
only two small dents from the accident; no blood was on the car. A blood draw of
defendant was conducted, apparently for toxicology purposes, within 26 hours of the
6 People v. Harvey (1979) 25 Cal.3d 754.
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accident. No results of this test appear in the record. (In re Alexis E. (2009) 171
Cal.App.4th 438, 448, fn. 6 [Information obtained by the social worker in a juvenile
dependency case reflected “marijuana’s negative [e]ffect on the user’s driving skills lasts
‘for at least 4-6 hours after smoking a single marijuana cigarette, long after the “high’’ is
gone.’”]) Unlike in Rubics, no evidence of any accident reconstruction appears in the
record. Thus, it would appear the evidence here, or lack thereof, was at best, for the
People, inconclusive and, at worst, negated any culpability of defendant for the collision.
Either way, no charges regarding the collision were brought against defendant. Because
no determination regarding defendant’s culpability for the collision had been made,
restitution for the victim’s medical care was an abuse of the court’s discretion.
DISPOSITION
The order granting the victim restitution is reversed. The matter is remanded to
allow the People to file a motion, in their discretion, for restitution in which they will
bear the burden of proving an amount, if any, which reflects the degree to which the
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victim’s injuries were exacerbated, if at all, by defendant’s flight. (People v. Sy (2014)
223 Cal.App.4th 44, 63 [“[T]he standard of proof at a restitution hearing is by a
preponderance of the evidence . . . .”].)
CERTIFIED FOR PUBLICATION
CODRINGTON
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.
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