State v. Michaelback ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 28,150
10 WALTER MICHAELBACK,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Ernesto J. Romero, District Judge
14 Gary K. King, Attorney General
15 Francine A. Chavez, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender
19 Stephanie Erin Brunson, Assistant Appellate Defender
20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 ROBLES, Judge.
1 Following a grand jury indictment on a single count of breaking and entering,
2 contrary to NMSA 1978, Section 30-14-8 (1981), Walter Michaelback (Defendant)
3 entered a plea of no contest. After entering the plea, information was discovered by
4 defense counsel, which suggested that Defendant was mentally retarded and was not
5 capable of entering his plea knowingly, intelligently, or voluntarily. This appeal
6 arises from the district court’s denial of a motion to withdraw the plea and dismiss for
7 competency and a subsequent denial of a motion to reconsider. We conclude that the
8 uncontradicted evidence presented, combined with a misapplication of the law,
9 requires dismissal.
10 I. BACKGROUND
11 Following his indictment, defense counsel challenged Defendant’s competency
12 to stand trial. At some point before entering the plea, defense counsel received
13 informal, verbal assurances from Dr. Moss Aubrey that, although Defendant was “on
14 the cusp,” he was probably competent to stand trial. The assessment was not a
15 complete evaluation, no report was generated, and there was no reference to other
16 evaluations that Defendant had undergone. Based on this assurance, defense counsel
17 withdrew his challenge to Defendant’s competency.
18 Defendant entered a plea before Judge Blackmer on April 7, 2006, for which
19 he received a conditional discharge, probationary requirements, and an order to attend
2
1 and successfully complete mental health court. The district court engaged Defendant
2 in a plea colloquy, reciting the nature of the charge, the rights that were being waived
3 by entering the plea, and the possible sentence that Defendant faced. Defendant’s
4 overall responses to the district court were terse, but gave the appearance that he
5 understood the court and the agreement. At the sentencing stage of the proceeding,
6 defense counsel made the following statements:
7 When I spoke with [Dr.] Aubrey, he indicated that he’s just about on the
8 cusp, so it could have gone either way, but he felt that at this time he’s
9 competent.
10 I’ve spoken with him quite a bit and he seems to understand the
11 consequences of what’s happening and has been able to help me deal
12 with this case and make decisions, so he’s met the criteria. I don’t think
13 he’s very high functioning, Your Honor, and I think the [c]ourt needs to
14 take that into consideration, and [the State] understands, we’ve spoken
15 several times about which way to go in this case. While [the State] is
16 sympathetic to [Defendant’s] special needs, we would ask for a
17 conditional discharge.
18 Two months after entering the plea, defense counsel filed a motion to reconsider
19 the sentence. At the hearing on the motion, Dr. James Harrington stated to the court
20 that he knew Defendant in the context of his referral to the mental health court. As
21 part of the initial evaluation process, Dr. Harrington conducted a background check
22 in which he came across an earlier court file that indicated that Defendant had raised
23 competency in 2004 in another proceeding. Daniel Seagrave, the doctor who had
24 performed the evaluation in that proceeding, concluded that Defendant was not
3
1 competent. The charges were ultimately dismissed in that case because of
2 competency. Dr. Harrington informed the court that, although he had not conducted
3 a formal evaluation prior to the hearing, it was his conclusion based on his interactions
4 with Defendant, as well as consideration of the previous determination, Defendant (1)
5 did not qualify for mental health court, (2) did not understand the charge of breaking
6 and entering, and (3) was not competent based on his preliminary assessment and
7 opinions that were consistent with the previous diagnosis of Dr. Seagrave, which
8 actually evaluated Defendant’s intellectual level. At the conclusion of the hearing,
9 defense counsel stated that given the information that he now had, it was his opinion
10 that Defendant could not have entered a knowing plea agreement and, to that extent,
11 defense counsel had provided ineffective assistance. The court suggested further
12 assessment of Defendant and, during the interim, that Defendant file a formal motion
13 to withdraw his plea, which would allow the court to have jurisdiction in the matter.
14 Moreover, the court ordered that Dr. Seagrave’s evaluation report on Defendant’s
15 previous case be “unsealed” for defense and prosecution review.
16 Defendant filed his motion to withdraw the plea that was later amended to
17 include a request to dismiss for competency. Two weeks before Defendant filed his
18 motion, he was indicted in an unrelated case on burglary, larceny, and tampering with
19 evidence charges. This third case was assigned to Judge Martinez and is not the
4
1 subject of this appeal. However, it is apparent from the record that competency was
2 challenged pretrial and that Dr. Aubrey was assigned to conduct the competency
3 evaluation. Dr. Aubrey conducted a full evaluation in September 2006 and, following
4 a competency hearing, Judge Martinez dismissed the third case in December,
5 concluding that “Defendant is mentally retarded as defined by [NMSA 1978, Section
6 31-9-1.6 (1999)] and is not competent to stand trial.”
7 In the instant case, Judge Blackmer retired before a competency evaluation was
8 conducted. The case was reassigned to Judge Romero and, following Dr. Harrington’s
9 completion of a competency evaluation in August 2006, a hearing was held on
10 Defendant’s motion to withdraw the plea and dismiss for competency. The hearing
11 was held in the month following Judge Martinez’s judicial determination and
12 dismissal of the third case. Dr. Harrington was the only witness in the immediate
13 case, and he testified that Defendant had a full-scale IQ of 57. In addition, he testified
14 that when an individual tests at this level of intellectual capacity, competency comes
15 into question. Dr. Harrington’s opinion was that Defendant (1) showed little
16 understanding of the meaning and consequences of the charge against him, (2) was
17 unable to assist in his own defense, and (3) could not explain what the terms “not
18 guilty” or right to “remain silent” meant. Because Defendant’s condition impacted his
19 ability to understand, consult, make intelligent decisions, and that the condition was
5
1 permanent and “had existed for a long time,” it was Dr. Harrington’s conclusion that
2 Defendant was not competent, nor was he competent when he entered his plea.
3 Defendant’s history indicated he had been in special education classes in high school.
4 Dr. Harrington stated:
5 [T]here’s a distinct tendency for people -- for example, who have been
6 in special ed[ucation] classes . . . a real distinct tendency in that
7 population for them to say that they understand things when they really
8 don’t. And I think [Defendant] was no different there. He will tell you
9 he understands, when he doesn’t. It’s an attempt to try to fit in and it’s
10 not an attempt to malinger or anything like that. It’s just an attempt to
11 please. So when people say they understand what’s going on, they
12 frequently say they do, when they don’t. And that was the situation with
13 [Defendant].
14 II. DISCUSSION
15 On appeal, Defendant asserts that because he was not capable of entering into
16 his plea knowingly or voluntarily, the district court abused its discretion in not
17 allowing him to withdraw his plea. We conclude that the uncontradicted evidence
18 presented at the hearing, in concert with the district court’s misapplication of the law,
19 necessitates reversal.
20 Our courts have previously contemplated the standard of review within the
21 context of withdrawing a plea. A district court’s order on a defense motion to
22 withdraw a guilty plea is reviewed for an abuse of discretion. State v. Herrera,
23 2001-NMCA-073, ¶ 7, 131 N.M. 22, 33 P.3d 22. However, leave should be granted
6
1 to withdraw a post-sentence plea whenever it appears that the withdrawal is necessary
2 to correct a manifest injustice or error. Id.; State v. Hunter, 2005-NMCA-089, ¶¶ 20,
3 28, 138 N.M. 96, 117 P.3d 254 (noting that courts abuse their discretion when they
4 are “shown to have acted unfairly, arbitrarily, or committed manifest error” (internal
5 quotation marks and citation omitted)). In Hunter, this Court observed that it would
6 be a manifest injustice to allow a post-sentence plea to remain in effect if (1) the plea
7 was not ratified by the defendant, (2) the plea was not voluntary, or (3) effective
8 counsel was denied. Id. ¶¶ 21, 22. Defendant’s claim that he was not competent to
9 enter his plea is equivalent to claiming that his plea was not voluntary.
10 The standard to determine competency to enter a guilty plea is the same as the
11 standard to determine competency to stand trial. State v. Lucas, 110 N.M. 272, 275,
12 794 P.2d 1201, 1204 (Ct. App. 1990). A defendant is considered “competent to stand
13 trial if he understands the nature and significance of the proceedings, has a factual
14 understanding of the charges, and is able to assist his attorney in his defense.” State
15 v. Garcia, 2000-NMCA-014, ¶ 20, 128 N.M. 721, 998 P.2d 186 (internal quotation
16 marks and citation omitted.); see UJI 14-5104 NMRA. It is typically “the defendant’s
17 burden to demonstrate incompetency by a preponderance of the evidence.” Garcia,
18 2000-NMCA-014, ¶ 20. This Court likewise reviews a district court’s determination
19 of competency for an abuse of discretion. State v. Duarte, 1996-NMCA-038, ¶ 15,
7
1 121 N.M. 553, 915 P.2d 309. However, even when the standard of review is an abuse
2 of discretion, “[this Court] review[s] the application of the law to the facts de novo.”
3 Becenti v. Becenti, 2004-NMCA-091, ¶ 6, 136 N.M. 124, 94 P.3d 867 (internal
4 quotation marks and citation omitted).
5 The capability of understanding proceedings and having the ability of making
6 a rational defense is fundamental within our judicial system. “[I]t is a violation of due
7 process to prosecute a defendant who is incompetent to stand trial.” State v.
8 Rotherham, 1996-NMSC-048, 122 N.M. 246, 252, 923 P.2d 1131, 1137. Aside from
9 simply understanding the gravity and meaning of the proceedings, “[a]n accused must
10 have the capacity to assist in his own defense and to comprehend the reasons for
11 punishment.” Id. Individuals are simply not competent if they are incapable of
12 appreciating their peril. See id. It would therefore be a manifest injustice if Defendant
13 entered a plea when he was not capable of entering it voluntarily, and the injustice
14 would be perpetuated if the legal system would not allow him to withdraw it.
15 The district court’s order denying Defendant’s motion made the following
16 relevant findings:
17 4. In June[] 2006[,] [D]efendant was indicted for [b]urglary in
18 CR[]2006-2783 [third case], assigned to [Judge] Martinez.
19 5. On December 12, 2006[,] before an adjudication in CR 2006-
20 2783, [Judge] Martinez pursuant to [Section] 31-9-1.6, . . .
8
1 dismissed the [i]ndictment without prejudice, on evidence of
2 [D]efendant’s incompetence and mental retardation.
3 6. Dr. Harrington, a licensed clinical psychologist, conducted a
4 mental evaluation of [D]efendant in September[] 2006 and
5 testified that [D]efendant lacked the mental capacity to assist in
6 his defense and suffers from mild retardation. According to Dr.
7 Harrington, more likely than not, [D]efendant was incompetent in
8 April[] 2006 when he entered the [p]lea and [d]isposition
9 [a]greement and changed his plea in CR 2005-03963 [immediate
10 case].
11 7. The April 7, 2006 transcript of proceedings before [Judge]
12 Blackmer is attached as Exhibit “A[.”] [Defense counsel]
13 represented [m]ovant when the [p]lea and [d]isposition
14 [a]greement and nolo plea were entered. [Defense counsel]
15 informed Judge Blackmer that although he had raised the issue of
16 [D]efendant’s lack of mental capacity, he was withdrawing his ex
17 parte motion because [D]efendant knew and understood
18 everything in the plea agreement . . . . [Defense counsel] related
19 that he had conferred with Dr. Moss Aubrey, . . . who opined that
20 [D]efendant was competent.
21 (Emphasis omitted.)
22 The following relevant conclusions were also made by the district court:
23 (1)[] Defendant has failed to meet his burden of proof that on April 7,
24 2006, he lacked the capacity to enter the plea of nolo contendare.
25 (2) [Section] 31-9-1.6 . . . is inapplicable because it pertains to pre-
26 adjudicatory, as opposed to post-adjudicatory, mental incapacity.
27 In the latter category, the applicable statute is [NMSA 1978,
28 Section 31-9-4 (1982).]
29 The district court attached to the order as “Exhibit A,” a transcript of the entire
30 proceeding before Judge Blackmer where Defendant entered his plea. The State
9
1 argues that the evidence presented supports the district court’s decision and that
2 Defendant has simply failed to carry his burden.
3 We begin our analysis by agreeing with a discrete point that the State makes in
4 its brief. Citing State v. Rael, the State argues that a demonstration of mental
5 retardation is a different focus than a demonstration of competency to stand trial.
6 2008-NMCA-067, ¶ 7, 144 N.M. 170, 184 P.3d 1064. We agree, and Dr. Harrington’s
7 testimony at the hearing supports this proposition. Specifically, Dr. Harrington stated
8 that it is possible for an individual to have an IQ lower than 70 and still be competent
9 to stand trial. However, “the lower it gets, especially IQs in the 50s, . . . those
10 individuals tend not to be competent.” Compare § 31-9-1.6(E) (presuming mental
11 retardation on individuals with an intelligence quotient of seventy or below), with
12 Rael, 2008-NMCA-067, ¶ 7 (“[W]e are not aware of any statutory or case law that
13 directs that a person found to have mild mental retardation is necessarily incompetent
14 to stand trial.”).
15 The specific question this Court must answer is whether the evidence presented
16 allowed the district court to conclude that Defendant understood the nature and
17 significance of the proceedings, had a factual understanding of the charges, and was
18 able to assist his attorney in a defense. UJI 14-5104; Garcia, 2000-NMCA-014, ¶ 20.
10
1 Although our review of the record raises concerns about the showing of evidence for
2 each one of these requirements, we find it necessary to address only one.
3 In Dr. Harrington’s report and testimony, the point was made that Defendant
4 showed little understanding of the meaning, consequences, or proceedings involved
5 in this case. During the evaluation when asked what being charged with a crime
6 meant, Defendant stated that he thought that because he had been charged, he had
7 already been found guilty. When asked what would happen if a defendant was found
8 not guilty, Defendant responded that he would be released. Moreover, after spending
9 233 days in presentence confinement and then being released to pretrial services,
10 Defendant stated that it meant that he had been found not guilty. Dr. Harrington noted
11 the contradiction between Defendant’s statements that he had been found guilty
12 because he was charged, and then he was found not guilty because he was released,
13 which demonstrated to Dr. Harrington that Defendant was “clearly confused.” Dr.
14 Harrington’s testimony was that Defendant’s “level of intellectual functioning was
15 significantly low enough that [Defendant did not have] the ability to understand the
16 proceedings.” To the extent that the State argues that Dr. Harrington’s testimony and
17 report established that Defendant had some understanding of the nature and
18 significance of the criminal proceedings, we disagree. Dr. Harrington believed that
19 Defendant had a basic understanding that a criminal proceeding was an adversarial
11
1 process, but his understanding was limited. The testimony established that Defendant
2 had a “cognizant inability to understand the nature of the role of the proceedings” that
3 Defendant did not know if he had been found innocent or guilty of the charge.
4 We now turn to the State’s argument that the district court reviewed the
5 transcript of the plea proceedings before Judge Blackmer, and the fact that Judge
6 Romero attached the transcript to his order denying Defendant’s withdrawal of the
7 plea. Rule 5-303(E), (F) NMRA (amended 2006) requires a district court to address
8 a defendant personally in open court and inform as well as determine whether the
9 defendant understands the nature of the charges, the possible penalties, and the
10 defendant’s rights. Judge Blackmer adhered to Rule 5-303 in accepting the plea.
11 Although Judge Blackmer stated at the hearing to reconsider the sentence that he “did
12 recognize [Defendant] was a little slow,” Defendant gave affirmative responses at the
13 plea hearing when questioned about his understanding. Further, defense counsel
14 asserted that Defendant understood the proceedings and withdrew the challenge to
15 competency. However, these facts do not strike us as compelling.
16 First, “assertions . . . of counsel are not evidence.” Muse v. Muse,
17 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104 (filed 2008). This Court has
18 previously held that a defense counsel’s “observations and opinions alone cannot
19 trigger reasonable doubt about [a] defendant’s competency.” State v. Flores,
12
1 2005-NMCA-135, ¶ 29, 138 N.M. 636, 124 P.3d 1175. This is because the assertions
2 and observations of counsel “must be substantiated.” Id. ¶ 28.
3 Second, due process requires that “a guilty plea be made voluntarily and
4 intelligently.” State v. Lucero, 97 N.M. 346, 352, 639 P.2d 1200, 1206 (Ct. App.
5 1981). A defendant cannot voluntarily and intelligently respond to circumstances
6 when he lacks the capacity to understand the proceedings. The philosophy behind any
7 party being allowed to raise competency at any time during the course of the
8 proceedings embraces the notion that a defendant cannot be validly tried or enter a
9 plea while incompetent. See NMSA 1978, § 31-9-1 (1993); State v. Chapman, 101
10 N.M. 478, 483, 684 P.2d 1143, 1148 (1984); State v. Tartaglia, 80 N.M. 788, 790, 461
11 P.2d 921, 923 (Ct. App. 1969). “If one is mentally incompetent, then, by definition,
12 he cannot be expected to raise that contention before the trial court and thus cannot
13 be prejudiced by his failure to do so.” State v. Guy, 79 N.M. 128, 130, 440 P.2d 803,
14 805 (Ct. App. 1968) (internal quotation marks and citation omitted). In this particular
15 case, the district court’s findings and conclusions do not indicate that Defendant’s
16 statements were relied upon. To the extent that the district court did rely on a
17 transcript of Defendant’s statements of “[y]es” and “a little bit” in response to Judge
18 Blackmer’s questions as to whether Defendant understood the proceedings, we
19 conclude that such reliance was not in accord with the law. In light of the specific
13
1 expert testimony and the principle that a defendant cannot be expected to raise his
2 own incompetence, we conclude it would result in an unfair and arbitrary abuse of
3 discretion that would create a manifest error if the district court were to rely on a
4 transcript of Defendant’s responses.
5 The only testimony concerning Defendant’s understanding of the proceedings
6 came from Dr. Harrington. The testimony, if believed, required a finding that
7 Defendant did not understand the proceedings sufficiently to be determined
8 competent to enter a plea. Although the district court was not required to believe the
9 testimony, we presume that it did so because the testimony was uncontradicted, the
10 court failed to set forth a reason for disbelieving it, and Finding Number 6 of the
11 court’s order denying the motion to withdraw the plea indicates that the court believed
12 Dr. Harrington’s testimony, which was set out affirmatively in the findings.
13 As a general rule, on review, we indulge in reasonable presumptions that
14 support the district court’s ruling. State v. Gonzales, 1999-NMCA-027, ¶ 15, 126
15 N.M. 742, 975 P.2d 355 (filed 1998). However, this Court “will not presume that the
16 district court has rejected uncontradicted testimony.” Id. ¶ 16. When a district court
17 does reject uncontradicted testimony, it should “indicate in the record the reasons” for
18 doing so. Id. (internal quotation marks and citation omitted).
14
1 As outlined above, Dr. Harrington was the only witness. His testimony
2 established that Defendant did not understand the proceedings. Likewise, the district
3 court did not state verbally or in its order that it was rejecting Dr. Harrington’s
4 testimony. The order denying the motion to withdraw the plea states, in pertinent part:
5 “[Section] 31-9-1.6 . . . is inapplicable because it pertains to pre-adjudicatory, as
6 opposed to post-adjudicatory, mental incapacity. In the latter category, the applicable
7 statute is [Section] 31-9-4.”
8 Section 31-9-1.6 pertains to mental retardation and the likelihood that an
9 individual will become competent following a determination of incompetence.
10 Further, hearings pursuant to Section 31-9-1.6 inquire as to whether individuals are
11 likely to harm themselves or others. If there is an indication of an individual’s
12 likelihood of causing future harm to themselves or others, Section 31-9-1.6 mandates
13 the initiation of civil commitment proceedings pursuant to NMSA 1978, Section 43-1-
14 1 (1999). Alternatively, Section 31-9-4 focuses on sentences that a defendant may
15 receive if he is determined to be guilty, but mentally ill, or upon acceptance of a plea.
16 From the district court’s conclusions that Section 31-9-1.6 was inapplicable because
17 it pertained to pre-adjudicatory incapacity, and Section 31-9-4 was applicable and
18 pertained to post-adjudicatory capacity, we infer that the district court believed Dr.
19 Harrington’s testimony, however, mistakenly conflated the terms “mentally ill” and
15
1 “mentally retarded.” The district court’s confusion on this point is underscored by the
2 following interaction that occurred at the hearing:
3 COURT: Okay. I have a question I would like
4 both of you to comment on. Is there a
5 difference between incompetency at the
6 time of the plea and incompetency that
7 arises after the plea and after the
8 sentence? If so, what is it?
9 [DEFENSE COUNSEL]: There is not a difference, Your Honor.
10 In specifically talking about
11 [Defendant], Dr. Harrington’s
12 testimony was clear that [Defendant]
13 has a longstanding, organic mental
14 health issue. He was mentally retarded
15 prior to the plea. He was mentally
16 retarded during the plea. He is
17 mentally retarded today.
18 COURT: Does that mean, [defense counsel], that
19 mentally retarded people have a stay-
20 out-of-jail pass? That they could
21 commit crimes --
22 [DEFENSE COUNSEL]: Your Honor, I’m not --
23 COURT: -- and not be held accountable?
24 [DEFENSE COUNSEL]: Your Honor, the State -- the
25 [L]egislature has given the [c]ourt a
26 statute, has given the [c]ourt a mandate
27 as to finding of mental retardation and
28 that is how the [c]ourt needs to find.
29 I’m not going to get into a
30 philosophical discussion, Your Honor,
31 as to what --
16
1 COURT: I’m not asking you to philosophize.
2 I’m asking you to show me a statute
3 that says mental -- people with mental
4 retardation cannot be held accountable
5 for the crime they commit.
6 [DEFENSE COUNSEL]: There are mechanisms set out by the
7 [L]egislature of which the [c]ourt -- of
8 which the [L]egislature has given this
9 [c]ourt jurisdiction --
10 COURT: Well, how about sharing that statute
11 with me.
12 [DEFENSE COUNSEL]: Your Honor, [Section] 31-9-1.6 is the
13 statute for mental retardation. A civil
14 commitment statute the State may
15 proceed on, I do not have the citation
16 for that. That is a completely separate
17 proceeding, separate from this [c]ourt’s
18 jurisdiction, Your Honor.
19 The [L]egislature has given us those --
20 this statute. And my motion is under
21 [Section 31-9-]1.6, Your Honor. And
22 that is the relevant statute that lays out
23 specifically what the evidence is, Your
24 Honor, and what the evidence is that
25 the [c]ourt has to do X. The civil
26 commitment statute is under the mental
27 health and disability, Your Honor, but
28 that would be a separate proceeding,
29 and the State has not filed that.
30 COURT: How do you explain [NMSA 1978,
31 Section 31-9-3(A) (1982)] that reads as
32 follows: I’m quoting it to you.
17
1 Quote[:] “A person who at the time of
2 the commission of a criminal offense
3 was not insane but was suffering from
4 a mental illness is not relieved of
5 criminal responsibility for his conduct
6 and may be found guilty but mentally
7 ill.”
8 In the instant case, the question before the district court was whether Defendant
9 was capable of entering a plea knowingly, intelligently, and voluntarily. This is a
10 different focus than whether a disorder afflicted
11 a person at the time of the commission of the offense and which impaired
12 that person’s judgment, but not to the extent that he did not know what
13 he was doing or understand the consequences of his act or did not know
14 that his act was wrong or could not prevent himself from committing the
15 act.
16 § 31-9-3(A) (emphasis added). The district court’s statements demonstrate its
17 confusion. By concluding in its order that a defendant could enter a plea and serve a
18 sentence even though the defendant is mentally ill, the district court demonstrated its
19 confusion regarding Dr. Harrington’s testimony. However, the district court’s
20 conclusion fails to answer the first question—whether Defendant could knowingly
21 enter the plea—as opposed to whether defendants who are mentally ill may have
22 sentences imposed upon them after they have entered a plea or have been found guilty.
23 See §§ 31-9-3, -4.
18
1 III. CONCLUSION
2 We reverse the district court’s denial of Defendant’s motion to withdraw his
3 plea and remand this case for further proceedings not inconsistent with this Opinion.
4 IT IS SO ORDERED.
5 _______________________________
6 ROBERT E. ROBLES, Judge
7 WE CONCUR:
8 ___________________________
9 JAMES J. WECHSLER, Judge
10 ___________________________
11 TIMOTHY L. GARCIA, Judge
19