People v. Bennett CA2/1 ( 2022 )

Filed 4/13/22 P. v. Bennett CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B314522
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA090952)
v.
MARIE BENNETT,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David Walgren, Judge. Reversed and
remanded with directions.
Aurora Elizabeth Bewicke, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
In June 2019, the trial court imposed a six-year sentence,
suspended execution of the sentence, and ordered defendant
Marie Bennett to serve three years of probation. In April 2021,
the trial court summarily revoked defendant’s probation and,
after a contested hearing, the court sentenced defendant to state
prison.
Defendant mounts two challenges to the revocation of her
probation and her resulting prison sentence. First, she contends
the trial court did not have jurisdiction to revoke probation
because of recent legislation1 that reduced her probation period
to two years, which two-year period expired before the trial court
revoked her probation. She arrives at this conclusion by applying
her presentence incarceration, which the trial court later
included as a condition of her probation, to reduce the new
two-year probationary period. Second, defendant argues the trial
court violated her right to due process when it revoked her
probation based on grounds for which she did not receive prior
written notice.
We disagree with defendant’s first contention because even
assuming Assembly Bill No. 1950’s two-year period applies
retroactively to her, the trial court revoked her probation within
the two-year period. Defendant’s incarceration, served as a
condition of probation, does not reduce the two-year probationary
period.
1 Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly
Bill No. 1950) (Stats. 2020, ch. 328, § 2), effective on January 1,
2021, reduced felony probation terms to two years (with
certain exceptions not relevant here), by modifying Penal Code
section 1203.1. Undesignated subsequent statutory citations are
to the Penal Code.
2
We, however, agree with her second contention. It is
undisputed that defendant never received prior written notice of
all but one of the bases the trial court cited to formally revoke her
probation. That failure violated her right to due process,
requiring us to reverse the judgment. Upon remand, we agree
with the parties that irrespective of whether there is a new
probation violation hearing, the trial court must resentence
defendant.
BACKGROUND
1. Conviction and sentence
On December 26, 2018, the People charged defendant with
five counts of perjury. In an amended information, the People
alleged that in 2003, defendant requested an identification card
using an alias. The remaining counts allege the same conduct
occurring in 2007 and three times in 2016. The People further
alleged defendant suffered six prior convictions for possession of a
controlled substance (Health & Saf. Code, § 11350), dating back
to 1999. According to defendant, the perjury charges stemmed
from her use of an alias to hide from an abuser. Defendant
pleaded no contest to the charges. On her plea form, she
indicated it was an open plea.
On June 3, 2019, the trial court sentenced defendant to an
aggregate term of six years. The court suspended execution of its
sentence and placed defendant on three years’ formal probation.
As a condition of probation, the court ordered her to serve
180 days in county jail. The court credited defendant for
180 days, consisting of 90 days actual presentence custody and
90 days good time credit. Among other conditions of probation,
the court ordered defendant to complete a 120-day drug
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treatment program, obey all laws, and report to probation. The
court ordered defendant to pay a restitution fine, criminal
conviction fee, and security fee. The court also ordered and
stayed a probation revocation fine pending successful completion
of probation.
2. Probation reports
In a report filed with the superior court on October 17,
2019, the probation officer stated that defendant was in
compliance with the terms of her probation. The report indicated
defendant had completed a three-month residential drug program
and tested negative for controlled substances in 16 random drug
tests. This report indicated the probation period would expire on
June 2, 2022 (three years after the June 3, 2019 sentencing date).
In a report filed January 31, 2020, the probation officer
represented that defendant had not reported to probation, and
had told the probation officer that “she was going through some
health issues.” Following that report, the trial court revoked and
reinstated defendant’s probation.
In an April 1, 2021 report, the probation officer indicated
that on March 23, 2021, defendant was stopped at a traffic stop
and did not have a valid driver’s license. Officers searched
defendant’s vehicle and recovered three “EBT cards”, (a card used
to redeem public assistance benefits), two credit cards, and three
pieces of “EDD mail . . . and an unemployment insurance
application” belonging to other people. Officers arrested
defendant for possession of access cards. The probation report
indicated that defendant had failed to complete 26 days of
community labor and was delinquent in paying her fines and
fees. (The initial sentencing court did not order defendant to
complete community service.) The report further indicated that
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“prior to the recent arrest the defendant had stated she is unable
to pay on her financial obligation as she is not receiving an
income. She has been waiting on unemployment.”
The probation officer recommended that the trial court
(1) find defendant in violation of her probation; (2) order
defendant to attend an anti-theft program; and (3) order
defendant to pay her financial obligation. The probation officer
recommended “[a]ll other terms and conditions to remain the
same.” The probation officer attached an arrest report indicating
that defendant was arrested for identity theft based on the items
found in her vehicle following the March 23rd traffic stop.
In a supplemental report, the probation officer stated that
defendant explained she was not charged with identity theft and
that she had been helping the persons whose papers officers
found in defendant’s vehicle. The probation officer stated, “[T]he
defendant has sustained an arrest for grand theft of access cards.
In addition she is in financial delinquency.” Based on the
foregoing, the probation officer “recommended that the defendant
be found in violation of her probation and that she be ordered to
attend an anti-theft program and to submit proof of enrollment to
the probation officer. It is also recommended that the defendant
be admonished to pay on her financial obligation.”
3. Summary revocation of probation
On April 16, 2021, the trial court summarily revoked
defendant’s probation. The trial court relied on the April 1, 2021
probation report. At the outset, the court stated, “[T]he court has
been notified that she was arrested with essentially about ten or
so ID’s in the name of other individuals.” The court stated: “[T]o
be on probation for perjury and then to be arrested for essentially
5
the same type of behavior, identity theft. She is going to be
remanded forthwith.”
4. Formal probation hearing
The trial court held a contested probation revocation
hearing on May 19, 2021. Officer Jake Johnson testified that on
July 26, 2020, he observed defendant driving 35 miles per hour in
a 65-mile-per-hour zone. According to Officer Johnson, defendant
“drift[ed]” out of her lane. Officer Johnson stopped defendant
and asked defendant if she had a driver’s license, and she said
she had only an identification card. Officer Johnson searched her
vehicle where he found a crack pipe, a small rock, and a can of
pepper spray. A later analysis showed the rock consisted of
.1166 net grams of cocaine in the base form. Defendant told
Officer Johnson she was a long-time crack cocaine user.
Deputy Sheriff Kevin Pacheco testified that on August 19,
2020, he answered a dispatch call to respond to an unconscious
woman in a locked vehicle. He observed defendant slumped over
the steering wheel of her vehicle. Deputy Sheriff Pacheco
searched her vehicle and found a plastic bindle containing two
white rock substances resembling cocaine base. Later tests
revealed 1.3464 grams of rock cocaine.
Officer Mitchell Tosti testified that on March 23, 2021, he
stopped defendant because her rear license plate light was not
working. Officer Mitchell asked defendant if she had a driver’s
license and defendant responded that she did not. Officer
Mitchell found EBT cards and debit cards in other persons’
names. Officer Mitchell also found mail that did not belong to
defendant. Officer Mitchell made no attempt to contact the
named individuals to find out if they had consented to
defendant’s possession of those documents.
6
Boris Curtis, defendant’s boyfriend, testified for defendant.
He stated that he had given defendant permission to have his
EBT card because she shops for their household groceries.
Donald Cummings, a friend gave defendant his EBT card as
payment for defendant’s assistance. Defendant accepted
payment in the form of EBT cards because the individuals she
helped had no money. The prosecutor cross-examined Curtis,
impeaching him with numerous convictions, most of which Curtis
did not recall. Curtis believed defendant was addicted to rock
cocaine.
The prosecutor argued that the trial court should revoke
defendant’s probation because defendant drove without a valid
driver’s license, possessed rock cocaine, and possessed pepper
spray. With respect to the March 23, 2021 incident, the
prosecutor argued: “[S]he’s in violation of probation for violating
the law with the traffic violations as well as not having a driver’s
license on her because it is suspended or revoked.” The
prosecutor further argued that Curtis’s testimony was not
credible.
Defense counsel acknowledged that defendant violated
probation by possessing crack cocaine, a crack pipe, and having a
suspended driver’s license. Counsel acknowledged that
defendant “has a very, very heavy crack problem. And she can’t
even leave home without having a crack pipe on her because she
can’t go 15 minutes without smoking crack, and she desperately
needs help.” Counsel, however, argued that with respect to the
“current case,” the People did not prove that defendant had used
other individuals’ identities without their consent.
The trial court found defendant violated the terms of her
probation by: (1) driving while unlicensed; (2) possessing cocaine;
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and (3) being in the possession of pepper spray, all in violation of
the probation requirement that she obey all laws. The court
indicated it was not using identify theft as a basis for the
probation violation.
After noting defendant’s lengthy criminal history, the court
indicated it would sentence her to state prison and did so on
July 15, 2021 when it sentenced defendant to an aggregate
six-year term consisting of the high term of four years on count 1
(perjury), one-third the midterm on count 2 (perjury) one-third
the midterm on count three (perjury), and a concurrent four-year
sentence on count 4 (perjury). The court awarded defendant
450 days presentence conduct credit.
DISCUSSION
A. The Trial Court Had Jurisdiction Over Defendant
When It Revoked Her Probation
“During the probationary period, the court retains
jurisdiction over the defendant [citation] . . . .” (People v. Howard
(1997) 16 Cal.4th 1081, 1092.) Assembly Bill No. 1950 generally
limits felony probation terms to two years. As we explain below,
the trial court revoked defendant’s probation within that two-
year period.
Defendant attempts to avoid this conclusion by applying
the time she served in custody as a condition of her probation to
reduce the new two-year probation term provided in Assembly
Bill No. 1950. According to defendant, defendant has 90 days
actual and 90 days good conduct custody credit resulting from
serving the jail term that was a condition of her probation.
According to defendant, whether one subtracts the full
180 custody credits, or just the 90 actual days spent in custody,
8
from the two-year probationary period under Assembly Bill
No. 1950, her probationary period expired either on December 4,
2020, or March 4, 2021, respectively. Defendant argues that any
contrary interpretation would “penalize indigent defendants”
because it “would essentially eliminate pre-sentence custody
credits for time spent in detention against a term of probation for
individuals who could not afford to post bail . . . .”
1. Assembly Bill No. 1950
“Assembly Bill No. 1950 amended section 1203.1 to limit
the maximum probation term a trial court is authorized to
impose for most felony offenses to two years.” (People v. Sims
(2021) 59 Cal.App.5th 943, 947.) Previously, section 1203.1,
subdivision (a) allowed courts to impose a term not exceeding the
maximum possible term of the sentence or five years, whichever
was less. (Former § 1203.1, subd. (a), eff. Jan. 1, 2012 to Dec. 31,
2020.)
Section 1203.1 now provides in pertinent part: “(a) The
court, or judge thereof, in the order granting probation, may
suspend the imposing or the execution of the sentence and may
direct that the suspension may continue for a period of time not
exceeding two years, and upon those terms and conditions as it
shall determine. The court, or judge thereof, in the order
granting probation and as a condition thereof, may imprison the
defendant in a county jail for a period not exceeding the
maximum time fixed by law in the case.” (§ 1203.1, subd. (a),
italics added.) Section 1203.1, subdivision (a)(2) provides: “The
court may, in connection with granting probation, impose either
imprisonment in a county jail or a fine, both, or neither.”
For purposes of this appeal, we assume without deciding,
that Assembly Bill No. 1950, modifying section 1203.1, would
9
apply retroactively to defendant. (See People v. Quinn (2021)
59 Cal.App.5th 874, 883–884 [Assembly Bill No. 1950 applies
retroactively]; People v. Sims, supra, 59 Cal.App.5th at pp. 955–
964 [same]; People v. Lord (2021) 64 Cal.App.5th 241, 244–246
[same]; cf. Kuhnel v. Appellate Division of Superior Court (2022)
75 Cal.App.5th 726, 736–737 [Assembly Bill No. 1950 did not
deprive the trial court of jurisdiction summarily to revoke
misdemeanor probation when defendant violated probation
during the first year of her probationary term].)
2. The trial court revoked defendant’s probation
within the two-year probationary period set by
Assembly Bill No. 1950
Assuming the two-year probation period applies to
defendant, her probation would have expired on June 2, 2021
(two years after her June 3, 2019 sentencing). The trial court
summarily revoked her probation on April 16, 2021, prior to the
expiration of her probation period. Therefore, the trial court had
jurisdiction over defendant when it revoked her probation.
(People v. Howard, supra, 16 Cal.4th 1081 at p. 1092.)2
Defendant’s argument that her 180-day incarceration
reduced the two-year probation period suffers from several
2 “[S]ummary revocation of probation preserves the trial
court’s authority to adjudicate a claim that the defendant
violated a condition of probation during the probationary
period . . . [T]he purpose of the formal proceedings ‘is not to
revoke probation, as the revocation has occurred as a matter of
law; rather, the purpose is to give the defendant an opportunity
to require the prosecution to prove the alleged violation occurred
and justifies revocation.’ [Citation.]” (People v. Leiva (2013)
56 Cal.4th 498, 515.)
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fallacies. First, defendant applies her presentence incarceration
to reduce her probation term when the applicable statute permits
the presentence incarceration to apply only to a term of
imprisonment or fine. Section 2900.5, subdivision (a) provides in
pertinent part: “In all felony and misdemeanor convictions,
either by plea or by verdict, when the defendant has been in
custody . . . all days of custody of the defendant, including days
served as a condition of probation in compliance with a court
order, credited to the period of confinement pursuant to
Section 4019, . . . shall be credited upon his or her term of
imprisonment, or credited to any base fine that may be imposed,
at the rate of not less than one hundred twenty-five dollars ($125)
per day, or more, in the discretion of the court imposing the
sentence. If the total number of days in custody exceeds the
number of days of the term of imprisonment to be imposed, the
entire term of imprisonment shall be deemed to have been
served.”3 The statute does not permit crediting defendant’s
presentence custody toward the (now) maximum two-year
probation period.
Second, defendant’s reliance on section 4019 is misplaced
because that statute governs the calculation of a defendant’s good
time/work credits. Section 4019 does not authorize those credits
3 A term of imprisonment includes “any period of
imprisonment imposed as a condition of probation or otherwise
ordered by a court in imposing or suspending the imposition of
any sentence, and also includes any term of imprisonment,
including any period of imprisonment prior to release on parole
and any period of imprisonment and parole, prior to discharged,
whether established or fixed by statute, by any court, or by any
duly authorized administrative agency.” (§ 2900.5, subd. (c).)
11
to reduce a term of probation.4 Consistent with sections 2900.5
and 4019, the original sentencing court credited defendant’s
presentence incarceration (90 days plus 90 days goodtime/work
time credits) to defendant’s term of imprisonment, imposed as a
condition of probation.
The original sentencing court ordered defendant to serve
180 days as a condition of probation and additionally ordered her
to serve a three-year probation term. Assuming Assembly Bill
No. 1950 applies to defendant, it serves to reduce the three-year
probation term to two years. It does not affect the additional
condition of probation requiring defendant serve 180 days.
Finally, in her reply brief, defendant fleetingly refers to
equal protection stating that her “interpretation better advances
the goal of equal protection and better respects the Legislature’s
intent . . . .” As just noted, defendant’s interpretation is not even
consistent with the language of the applicable statute, section
2900.5. Defendant’s unadorned reference to equal protection also
does not undertake the analysis required to demonstrate
constitutional error. Defendant does not argue she is a member
of a suspect class or that a fundamental right is at issue. Thus,
the rational basis test applies, but appellant fails to analyze the
following elements of that test: The legislation treats persons
4 Defendant cites section 4019, subdivision (a)(2) which
provides that its provisions apply to a defendant confined in
county jail as a condition of probation. Defendant also cites to
subdivision (f) which provides: “It is the intent of the Legislature
that if all days are earned under this section, a term of four days
will be deemed to have been served for every two days spent in
actual custody.” Neither subdivision supports defendant’s
argument that her presentence incarceration shortens the
maximum two-year probation period.
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similarly situated differently and there is no rational basis for
that disparate treatment. (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 881.) Under the rational basis test, the
fact that legislation may be underinclusive as to some persons
similarly situated does not violate the equal protection of the law.
As our Supreme Court has stated, “ ‘[w]hen conducting rational
basis review, we must accept any gross generalizations and rough
accommodations that the Legislature seems to have made.’
[Citation.] ‘A classification is not arbitrary or irrational simply
because there is an “imperfect fit between means and ends” ’
[citation], or ‘because it may be “to some extent both
underinclusive and overinclusive” ’ [citation].” (Id. at p. 887.)
In sum, even if Assembly Bill No. 1950’s ameliorative
change in section 1203.1 applies to defendant, her probation term
would have expired on June 2, 2021 (two years from the date of
her sentence). The trial court revoked her probation April 16,
2021, within the two-year period for felony probation set forth in
Assembly Bill No. 1950.
B. Defendant’s Right to Due Process Was Violated
Because She Did Not Have Prior Notice of All But
One of the Grounds for Formally Revoking
Probation
Defendant argues the trial court erred in revoking her
probation based on theories for which she had no prior notice and
that this error violated her right to due process.
The Attorney General does not appear to contest that
(1) the prosecutor and trial court relied on new grounds at the
formal revocation hearing; and (2) defendant had no prior notice
of those grounds. The Attorney General counters that defendant
waived her due process objection to this lack of notice by not
13
raising it below. The Attorney General never addresses the
merits of defendant’s actual due process claim because the
Attorney General misconstrues that claim. Specifically, the
Attorney General asserts, “[a]ppellant contends her right to due
process was violated because the trial court revoked her
probation based on a theory that was not argued by the
prosecution.” The Attorney General then asserts the prosecutor
discussed the theories during the contested hearing. The basis
for defendant’s due process claim, however, was the absence of
notice before the contested hearing of the grounds on which the
trial court relied to formally revoke her probation.
1. The Attorney General has not demonstrated
forfeiture
The Attorney General contends defendant cannot raise “a
notice issue for the first time on appeal citing People v. Goolsby
(2015) 62 Cal.4th 360, 367 and People v. Toro (1989) 47 Cal.3d
966, 976, disapproved on another ground in People v. Guiuan
(1998) 18 Cal.4th 558, 568, footnote 3. These authorities are not
apt; they concern a defendant’s failure to object to instructions on
lesser-related offenses at trial. Our high court has counseled that
a defendant cannot adopt a strategy of silence in the trial court
when the trial court instructs on a lesser-related offense and then
challenge the conviction on the related offense for the first time
on appeal, especially when an information can be amended at
trial as long as the evidence supporting the amendment was
considered at the preliminary hearing. (Goolsby, at p. 367; Toro,
at p. 976.)
In contrast to cases involving instructions on a lesser
related offense, the probation revocation hearing at issue here
was not preceded by an evidentiary preliminary hearing. Indeed,
14
when the trial court summarily revoked defendant’s probation, it
relied only on the allegations of identity theft, which the trial
court ultimately rejected. Thus, the preliminary proceeding in
this case afforded defendant no notice of the grounds for formally
revoking her probation. Finally, even if arguendo defendant
forfeited her due process argument, we would exercise our
discretion to address the merits of this constitutional challenge
on the merits. (People v. Lewis (1990) 50 Cal.3d 262, 282
[considering issue on merits to forestall ineffective assistance
claim]; People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6
[appellate court may consider unpreserved claims].)
2. Due process requires reversal of the judgment
After a summary revocation of probation, a defendant is
entitled to a formal hearing. (People v. Leiva, supra, 56 Cal.4th
at pp. 505, 515–516.) The minimum requirements of due process
include written notice of the claimed violation. (Morrisey v.
Brewer (1972) 408 U.S. 471, 489, Gagnon v. Scarpelli (1973)
411 U.S. 778, 782; People v. Vickers (1972) 8 Cal.3d 451, 458.)
The due process rights set forth in Morrissey, including notice,
apply to formal probation hearings. (People v. DeLeon (2017)
3 Cal.5th 640, 656.)
Consistent with these principles, it is not disputed that due
process requires written notice of any claimed violation in
probation revocation cases. (People v. Self (1991) 233 Cal.App.3d
414, 419; see also People v. Rodriguez (1990) 51 Cal.3d 437, 441
[probation revocation hearing subject to minimum requirements
of due process including written notice of claimed violations];
In re Moss (1985) 175 Cal.App.3d 913, 929 [probationer entitled
to written statement of reasons for revocation of probation].) In
Self, the court stated: “As the People acknowledge, the
15
probationer is entitled to written notice of the alleged violations
of probation, disclosure of the evidence against the probationer
and an opportunity to respond to the charges. [Citations.]
Accordingly, the trial court erred in permitting the amendment
[to add additional grounds for probation revocation] without
affording defendant the procedural safeguards required . . . .”
(People v. Self, supra, at p. 419.)
In the case before us, the probation officer primarily relied
on defendant’s arrest for identity theft and defendant’s financial
delinquency. The probation officer also reported that when
defendant was arrested for identity theft on March 23, 2021, she
did not have a valid driver’s license and (incorrectly) reported
that she had not completed 26 days of community service. In
summarily revoking defendant’s probation, the trial court relied
on the alleged identity theft. In formally revoking her probation,
the trial court relied on defendant’s: (1) driving while unlicensed
on multiple occasions; (2) possessing rock cocaine on two
occasions; and (3) being in the possession of pepper spray, all in
violation of the probation requirement that she obey all laws.
Defendant had prior notice of only one ground on which the
trial court relied formally to revoke her probation—that is that
on March 23, 2021, defendant was driving without a license. The
Attorney General does not argue, and the record does not show,
that the trial court would have revoked defendant’s probation
based solely on defendant’s being an unlicensed driver. As
defendant contends, she was entitled to notice of the grounds for
formally revoking her probation in advance of the contested
hearing. (People v. Self, supra, 233 Cal.App.3d at p. 419.) Upon
remand, we do not preclude further probation revocation
proceedings so long as those proceedings are consistent with
16
due process requirements. (See People v. Mosley (1988)
198 Cal.App.3d 1167, 1175 [failure to follow due process
requirements “necessitates a remand for further proceedings in
accordance with . . . due process”].)
C. The Trial Court Must Resentence Defendant In Light
of Recent Ameliorative Legislation
The parties agree that the trial court must resentence
defendant under section 1170, subdivision (b)(6), as modified
effective on January 1, 2022. That statute sets a presumptive
low term for victims of trauma or intimate partner violence.5
We agree that this ameliorative sentencing provision applies
retroactively. (People v. Superior Court (Lara) (2018) 4 Cal.5th
299, 307–308 [absent a contrary indication, the Legislature
generally intends for ameliorative changes to the criminal law to
5 Section 1170, subdivision (b)(6) provides in pertinent
part: “[U]nless the court finds that the aggravating
circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of
justice, the court shall order imposition of the lower term if any of
the following was a contributing factor in the commission of the
offense:
“(A) The person has experienced psychological, physical,
or childhood trauma, including, but not limited to, abuse,
neglect, exploitation, or sexual violence.
“(B) The person is a youth, or was a youth as defined
under subdivision (b) of Section 1016.7 at the time of the
commission of the offense.
“(C) Prior to the instant offense, or at the time of the
commission of the offense, the person is or was a victim of
intimate partner violence or human trafficking.”
17
apply retroactively].) We agree with defendant that the trial
court should appoint counsel for her and should expeditiously
assess whether to hold additional probation revocation
proceedings and proceed with any such proceedings, or
expeditiously resentence defendant.6 Nothing in this opinion
precludes the parties from raising additional arguments at the
resentencing hearing.
6 Defendant’s argument that the trial court abused its
discretion in revoking her probation is moot given our conclusion
that because of a due process violation, we must reverse the
judgment.
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DISPOSITION
The judgment is reversed. The case is remanded to the
trial court. Within 10 days of the issuance of the remittitur, the
trial court shall appoint counsel to represent defendant. The trial
court shall conduct additional probation proceedings, if any, or
resentence defendant forthwith after remittitur.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
VOGEL, J.*
* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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