People v. Quinones CA4/1 ( 2021 )


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  • Filed 3/9/21 P. v. Quinones 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    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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,                                                                  D076840
    Plaintiff and Respondent,
    v.                                                                 (Super. Ct. No. SCD281845)
    JUAN MCKOY QUINONES,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of San Diego County,
    Sharon B. Majors-Lewis, Judge. Affirmed and remanded with directions.
    Aurora Elizabeth Bewicke, under appointment by the Court of Appeal,
    for Defendant and Appellant.
    Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
    Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
    Sevidal, Andrew Mestman and Randall D. Einhorn, Deputy Attorneys
    General, for Plaintiff and Respondent.
    A jury convicted Juan McKoy Quinones of robbery (Pen. Code, § 2111)
    and threatening a public officer (§ 71). After trial, Quinones admitted one
    strike prior (§ 667, subds. (b)–(i)), one serious felony prior (§ 667, subd. (a)),
    and one prison prior (§ 667.5, subd. (b)). The trial court struck all of the
    priors, and sentenced Quinones to three years of formal probation, including
    365 days in local custody.
    On appeal from the judgment, Quinones raises several claims of error.
    He first asserts reversal is required because the prosecution presented a
    legally invalid theory of liability to the jury. Alternatively, he argues his
    counsel was unconstitutionally ineffective because she failed to request a jury
    instruction on his claim of right to the property taken. Quinones next
    contends the court erred by failing to instruct on lesser included offenses.
    Finally, Quinones asks this court to correct a clerical error in a minute order
    that incorrectly states the jury found true the prior offense allegations.
    As we shall explain, we reject each of Quinones’s arguments except for
    his argument concerning the clerical error in the minute order. We affirm
    the judgment, and remand with directions to the trial court to modify the
    August 8, 2019 minute order to remove the inaccurate statement that the
    jury rendered a finding on the prior offense allegations.
    FACTUAL AND PROCEDURAL BACKGROUD
    Around 11:00 p.m., Quinones entered a Jack-in-the-Box restaurant in
    downtown San Diego. He ordered a hamburger and paid with an Electronic
    Benefits Transfer (EBT) card. While Quinones waited near the counter for
    his food, another customer came forward to place an order. Quinones asked
    the customer if he could pay for the customer’s order with his EBT card and
    take the customer’s cash. The cashier told Quinones that was not
    1     Subsequent undesignated statutory references are to the Penal Code.
    2
    permitted.2 Quinones responded to the cashier aggressively, stating “ ‘It is
    my E.B.T. card. I can do whatever I want with it.’ ” Quinones’s demeanor
    made the cashier uncomfortable, so she asked her manager, who was working
    the drive-through window, to take over the register. The cashier also asked
    the cook to make Quinones’s order right away.
    The manager gave Quinones his hamburger and again told Quinones
    he could not use his EBT card to pay for another customer’s order. Quinones
    became angry, threw his order back at the manager, and asked for a refund.
    The manager told Quinones he would give Quinones a refund after he took
    care of the other customers in line. As the manager opened the cash register
    to accept a cash payment from the next customer, Quinones reached into the
    register and grabbed some of the bills. The manager grabbed for Quinones’s
    hand to try and take back the bills, but Quinones yanked his hand away and
    started walking towards the door.
    The manager came out from behind the counter and attempted to block
    the door to prevent Quinones from leaving. Quinones pushed past the
    manager, and out the door. The manager followed Quinones outside, and
    grabbed a bag Quinones was carrying to try and stop him. Quinones broke
    free and kept walking as the manager followed, asking Quinones to return
    the money. Quinones then turned abruptly and punched the manager in the
    face. The manager felt his “head spinning.” Quinones fled the area. The
    manager had bruising on his face for days after the incident.
    The cashier called the police, who arrived after Quinones was gone.
    The police took a report and the following day, a detective came back to the
    store and viewed video surveillance of the incident taken by the store’s
    cameras. A still image of Quinones from the video was circulated, and
    2     The cashier also heard Quinones say he needed cash to buy drugs.
    3
    Quinones’s parole officer recognized him. The officer coordinated with San
    Diego police to arrest Quinones. While he was being processed at jail,
    Quinones repeatedly threatened the arresting officers.
    Quinones was eventually charged with robbery (§ 211) and threatening
    a public officer (§ 71). The amended information also alleged four probation
    denial priors, a prison prior, a serious felony prior, and a strike prior. After a
    two-day trial, the jury found Quinones guilty of both charges. Thereafter,
    Quinones admitted the alleged prison prior, the serious felony prior, and a
    strike prior. At the sentencing hearing, the trial court, sympathetic to
    Quinones, struck the priors and sentenced him to three years’ probation on
    the condition he serve 365 days in local custody.
    DISCUSSION
    I
    Prosecutorial Misconduct
    Quinones first asserts the prosecution presented a legally invalid
    theory of liability to the jury, requiring reversal. Alternatively, he argues his
    counsel was unconstitutionally ineffective because she failed to request a jury
    instruction on the defense of Quinones’s claim of right to the money taken.
    A
    After the close of evidence, before closing arguments, the trial court
    instructed the jury that robbery is a specific intent crime, which required the
    jury to find Quinones had the intent to permanently deprive the victim of the
    property. During her closing argument, the prosecutor argued to the jury
    that the refund Quinones claimed he was owed for his order was irrelevant to
    its determination of whether Quinones was guilty of robbery. Specifically,
    the prosecutor stated “Now, you may be asking yourself, okay. Well, Mr.
    Quinones entered the store. He used his EBT card. After he didn’t want his
    4
    food because he wasn’t getting cash that he said he wanted for drugs, he gave
    the food back, and at that point, he was waiting for his refund. And you may
    be thinking, ‘well, the moment he reached into the cash register, he was just
    making himself whole,’ because he had paid with his EBT card. You may be
    thinking, ‘well Jack-in-the-Box owed him money.’ ” She continued, “That’s
    not the way the law applies. That is not a defense. Ladies and gentlemen,
    you will find that nowhere in your jury instruction packet. … You do not
    have the right to go into a store, to go into a restaurant, to go into a tire shop,
    to go anywhere and just snatch money that you think you are entitled to. It
    is not how it works.”
    5
    During her rebuttal, the prosecutor again emphasized this argument.
    After closing statements, the court instructed the jury on the elements of
    robbery and the meaning of each element.3
    3      The court’s instruction, based on CALCRIM No. 1600, stated: “The
    Defendant is charged in Count One with Robbery. [¶] To prove that the
    Defendant is guilty of this crime, the People must prove that: [¶] 1. The
    Defendant took property that was not his own; [¶] AND 2. [¶] The property
    was in the possession of another person; [¶] AND [¶] 3. The property was
    taken from the other person or his immediate presence; [¶] AND [¶] 4. The
    property was taken against that person’s will; [¶] AND [¶] 5. The Defendant
    used force or fear to take the property or to prevent the person from resisting;
    [¶] AND [¶] 6. When the Defendant used force or fear, he intended to deprive
    the owner of the property permanently, or to remove the property from the
    owner’s possession for so extended a period of time that the owner would be
    deprived of a major portion of the value or enjoyment of the property. [¶]
    The Defendant’s intent to take the property must have been formed before or
    during the time he used force or fear. If the Defendant did not form this
    required intent until after using force or fear, then he did not commit
    robbery. [¶] If you find the Defendant guilty of robbery, it is robbery of the
    second degree. [¶] A person takes something when he or she gains possession
    of it and moves it some distance. The distance moved may be short. [¶] The
    property taken can be of any value, however slight. Two or more people may
    possess something at the same time. [¶] A person does not have to actually
    hold or touch something to possess it. It is enough if the person has control
    over it or the right to control it, either personally or through another person.
    [¶] A store or business employee who is on duty has possession of the store or
    business owner’s property. [¶] Fear, as used here, means fear of injury to the
    person himself. Fear may be shown by circumstantial evidence. Even when
    the person testifies that he or she is not afraid, circumstantial evidence may
    satisfy the element of fear. [¶] Property is within a person’s immediate
    presence if it is sufficiently within his or her physical control that he or she
    could keep possession of it if not prevented by force or fear. [¶] An act is done
    against a person’s will if that person does not consent to the act. In order to
    consent, a person must act freely and voluntarily and know the nature of the
    act.”
    6
    B
    Quinones asserts that the prosecution’s arguments constituted the
    submission of a legally invalid theory to the jury with regard to the element
    of intent. He argues that the failure of the jury to be properly instructed on a
    claim of right to the money Quinones took from the cash register made it
    possible for the jury to convict him on an improper legal theory. In other
    words, Quinones contends the jury was incorrectly led to believe that a claim
    of right would not negate the element of intent. In response, the Attorney
    General argues the issue was forfeited by Quinones’s failure to object to the
    prosecutor’s argument at trial. Even if not forfeited, the Attorney General
    contends the prosecutor’s arguments were not improper because the defense
    of claim of right was not applicable in this case.
    It is “the general rule that a defendant cannot complain on appeal of
    misconduct by a prosecutor at trial unless in a timely fashion he made an
    assignment of misconduct and requested that the jury be admonished to
    disregard the impropriety.” (People v. Benson (1990) 
    52 Cal.3d 754
    , 794
    (Benson); E.g., People v. Green (1980) 
    27 Cal.3d 1
    , 27–34.) If no objection is
    made in the trial court, “the point is reviewable only if an admonition would
    not have cured the harm caused by the misconduct.” (People v. Price (1991) 
    1 Cal.4th 324
    , 447.)
    Quinones failed to object to the statements he now claims were
    improper. “Any harm threatened” by the prosecution’s comments “was
    certainly curable,” and Quinones does not contend otherwise. (Benson, supra,
    52 Cal.3d at p. 794.) Accordingly, the argument was forfeited. However,
    even if an objection to the statements or request for a claim of right
    instruction had been made, we would reject the claim on its merits because
    the defense is not available on these facts.
    7
    “ ‘Although an intent to steal may ordinarily be inferred when one
    person takes the property of another, particularly if he takes it by force, proof
    of the existence of a state of mind incompatible with an intent to steal
    precludes a finding of either theft or robbery. It has long been the rule in this
    state and generally throughout the country that a bona fide belief, even
    though mistakenly held, that one has a right or claim to the property negates
    felonious intent. [Citations.] A belief that the property taken belongs to the
    taker [citations], or that he had a right to retake goods sold [citation] is
    sufficient to preclude felonious intent. Felonious intent exists only if the
    actor intends to take the property of another without believing in good faith
    that he has a right or claim to it. [Citation.]” [Citation.]’ ” (People v. Tufunga
    (1999) 
    21 Cal.4th 935
    , 943 (Tufunga).)
    The defense of claim of right, however, does not extend to “robberies
    perpetrated to satisfy, settle or otherwise collect on a debt, liquidated or
    unliquidated—as opposed to forcible takings intended to recover specific
    personal property in which the defendant in good faith believes he has a bona
    fide claim of ownership or title ….” (Tufunga, 
    supra,
     21 Cal.4th at p. 956.)
    Tufunga explained the rationale for the rule: “ ‘The distinction
    between specific personal property and money in general is important. A
    debtor can owe another $150 but the $150 in the debtor’s pocket is not the
    specific property of the creditor. One has the intention to steal when he takes
    money from another’s possession against the possessor’s consent even though
    he also intends to apply the stolen money to a debt. The efficacy of self-help
    by force to enforce a bona fide claim for money does not negate the intent to
    commit robbery. Can one break into a bank and take money so long as he
    does not take more than the balance in his savings or checking account?
    Under the majority rule [as it then existed, allowing a claim of right defense
    8
    to any robbery,] the accused must make change to be sure he collects no more
    than the amount he believes is due him on the debt. A debt is a relationship
    and in respect to money seldom finds itself embedded in specific coins and
    currency of the realm. Consequently, taking money from a debtor by force to
    pay a debt is robbery. The creditor has no such right of appropriation and
    allocation.’ ” (Tufunga, 
    supra,
     21 Cal.4th at pp. 954–955.)
    On appeal, Quinones argues the prosecutor’s statements in closing
    argument were improper without the claim of right instruction because there
    was evidence the money he took from the cash register was owed to him.
    Specifically, he points to the manager’s testimony that he would give
    Quinones a cash refund. For the reasons articulated in Tufunga, this
    evidence does not establish that Quinones lacked felonious intent. Rather,
    even if he was entitled to money to settle the debt of his returned hamburger,
    he was not permitted under the law to use self-help to settle that debt.
    Accordingly, the prosecutor’s statements were consistent with the law. For
    the same reason, Quinones’s trial counsel was not ineffective for failing to
    request the claim of right defense instruction.
    II
    Lesser Included Offenses
    Quinones next contends that the trial court erred in failing to instruct
    on what he argues were the lesser included offenses of theft and assault. The
    Attorney General responds that those instructions were not warranted
    because there was no evidence to support the theft instruction and because
    assault is not a lesser included offense to robbery.
    A
    Robbery requires that the defendant take by force or fear, whereas
    theft requires only that the defendant take without consent. (People v.
    9
    Ramkeesoon (1985) 
    39 Cal.3d 346
    , 351.) Fear may be inferred from the
    circumstances of the crime. (People v. Cuevas (2001) 
    89 Cal.App.4th 689
    ,
    698.) Further, the use of force or fear to retain property already in the
    perpetrator’s possession and to facilitate escape constitutes robbery. (People
    v. Gomez (2008) 
    43 Cal.4th 249
    , 255.)
    Trial courts have a duty, even in the absence of a request, to instruct
    juries in criminal cases in those principles of law necessary to assist them in
    understanding the case. (People v. Moye (2009) 
    47 Cal.4th 537
    , 548; People v.
    Breverman (1998) 
    19 Cal.4th 142
    , 154.) Courts must instruct juries on lesser
    included offenses where there is substantial evidence from which a jury could
    conclude that the lesser offense was committed, and the greater offense was
    not. (People v. Cook (2006) 
    39 Cal.4th 566
    , 596.) “Substantial evidence is
    evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence
    that a reasonable jury could find persuasive.” (People v. Barton (1995) 
    12 Cal.4th 186
    , 201, fn. 8.)
    The fact that “[t]heft is a lesser and necessarily included offense in
    robbery” (People v. Ramkeesoon, supra, 39 Cal.3d at p. 351) does not mean
    that whenever robbery is charged, instructions on theft must also be given.
    Rather, only “when the record contains substantial evidence of the lesser
    offense, that is, evidence from which the jury could reasonably doubt whether
    one or more of the charged offense’s elements was proven, but find all the
    elements of the included offense proven beyond a reasonable doubt.” (People
    v. Moore (2011) 
    51 Cal.4th 386
    , 408–409 (Moore).)
    On appeal, we independently review the record to determine whether
    there is substantial evidence that could support a finding of guilt on a lesser
    offense. We do not assess credibility or decide whether a jury should convict
    on the lesser offense. Our concern is only whether the evidence is substantial
    10
    such that a jury could reasonably choose the lesser of the offenses. (People v.
    Manriquez (2005) 
    37 Cal.4th 547
    , 587.)
    B
    Here, the prosecution presented evidence in the form of testimony from
    the manager and cashier, and the surveillance video, establishing
    unequivocally that Quinones used force to steal cash from the register.
    Specifically, the evidence showed that Quinones pushed the manager’s hand
    away from the register to take the bills, then pushed past the manager out of
    the store’s door, and finally that Quinones punched the manager in the face
    as Quinones fled. Quinones did not testify himself and called no witnesses on
    his behalf at trial. In his appellate briefs, Quinones only directs us to
    statements made by the trial judge at the sentencing hearing after the jury’s
    verdict was rendered and a statement by the manager at trial that at the
    moment Quinones struck him, he had turned to go back inside the store.
    Quinones asserts “one way to read the evidence is that [his] use of force
    against the nighttime manager was singly and separately motivated by his
    anger at being mocked, following the taking.” In support of this theory,
    Quinones cites the statements of the trial judge at the sentencing hearing
    suggesting the store employees might have been mocking him and that
    Quinones could have punched the manager because he was “fed up” with the
    way he was being treated in life. These statements were made by the court to
    explain its rational for striking Quinones’s priors. They were not evidence
    presented to the fact finder during trial. Thus, they do not support a theft
    instruction. (See People v. Stanley (2006) 
    39 Cal.4th 913
    , 961, fn. 10 [“ ‘It is
    axiomatic that argument is not evidence.’ ”].)
    The only actual evidence Quinones cites to support his argument is the
    manager’s statement at trial that Quinones struck him after he turned
    11
    around to go back inside the store. The manager testified that Quinones ran
    toward the drive through and he followed, yelling to Quinones to give the
    money back. The manager then stated, “I ran to the drive-through. He kept
    walking. I went back. I went back. That’s when he turned around, and he
    struck me … in the face.” The prosecutor next asked if “just prior to him
    hitting you in the face, were you still asking him for the money back?” The
    manager responded “[no]. I was headed inside.” The video surveillance,
    however, shows clearly that the manager was actively pursuing Quinones
    when Quinones turned and punched him in the face.
    Given this clear video evidence, we reject Quinones’s assertion that a
    reasonable interpretation of the manager’s testimony was “that the theft and
    the later punch were two independent acts.” Rather, on this record and as
    Quinones’s defense counsel argued, Quinones “was either guilty of robbery or
    he was not the perpetrator and was innocent of any crime.” (People v. Dorsey
    (1995) 
    34 Cal.App.4th 694
    , 705.) Because there was not substantial evidence
    from which the jury could have found Quinones guilty of theft rather than
    robbery, no instruction on the lesser included offense was warranted. (Moore,
    
    supra,
     51 Cal.4th at p. 409; People v. Jones (1992) 
    2 Cal.App.4th 867
    , 872.)
    C
    Quinones next contends the jury should also have been instructed on
    assault as a lesser included offense of robbery. “To determine whether a
    lesser offense is necessarily included in the charged offense, one of two tests
    (called the ‘elements’ test and the ‘accusatory pleading’ test) must be met.”
    (People v. Lopez (1998) 
    19 Cal.4th 282
    , 288.) “Under the accusatory pleading
    test, a lesser offense is included within the greater charged offense ‘ “if the
    charging allegations of the accusatory pleading include language describing
    the offense in such a way that if committed as specified the lesser offense is
    12
    necessarily committed.” ’ ” (Id. at pp. 288–289.) In other words, “if the facts
    actually alleged in the accusatory pleading include all of the elements of the
    lesser offense[,]” the trial court is required to instruct on the lesser offense.
    (People v. Bailey (2012) 
    54 Cal.4th 740
    , 748.)
    Quinones asserts that because he was charged with “accomplishing the
    taking by means of ‘force and fear,’ assault was a necessarily included offense
    under the accusatory pleading test.”4 As Quinones recognizes, this logic was
    considered and rejected in People v. Wright (1996) 
    52 Cal.App.4th 203
    (Wright). Wright reasoned “force” in the context of robbery did not
    necessarily mean physical force; it could be constructive force, i.e., fear. (Id.
    at pp. 210–211.) Wright explained, “ ‘force’ is not an element of robbery
    independent of ‘fear’; there is an equivalency between the two.” (Id. at
    p. 211.) On that basis, Wright concluded that an allegation of robbery
    encompassing both “force” and “fear” did not warrant an instruction on
    assault as a lesser included offense: “Since the element of force can be
    satisfied by evidence of fear, it is possible to commit a robbery by force
    without necessarily committing an assault. Consequently, under the
    ‘accusatory pleading’ test, assault is not necessarily included when the
    pleading alleges a robbery by force.” (Ibid.)
    The Supreme Court has cited Wright twice on this issue, though it has
    not commented on Wright’s reasoning because it found in each case that no
    substantial evidence supported an instruction on the lesser included offense,
    even assuming the accusatory pleading test were satisfied. (People v.
    O’Malley (2016) 
    62 Cal.4th 944
    , 984–985; People v. Parson (2008) 
    44 Cal.4th 4
        The accusatory pleading here alleged Quinones “did unlawfully and by
    means of force and fear take personal property from the person, possession
    and immediate presence of [the manager] in violation of PENAL CODE
    SECTION 211.”
    13
    332, 350.) We likewise have no occasion in this case to consider the reasoning
    in Wright because we conclude that even if the accusatory pleading test were
    satisfied, and even if substantial evidence supported a finding that Quinones
    was guilty of assault but not of robbery (see People v. Casteneda (2011) 
    51 Cal.4th 1292
    , 1327–1328), any error in failing to instruct the jury was
    harmless.
    “In noncapital cases, ‘the rule requiring sua sponte instructions on all
    lesser necessarily included offenses supported by the evidence derives
    exclusively from California law.’ [Citation.] As such, ‘in a noncapital case,
    error in failing sua sponte to instruct, or to instruct fully, on all lesser
    included offenses and theories thereof which are supported by the evidence
    must be reviewed for prejudice exclusively under [People v.] Watson [(1956)
    
    46 Cal.2d 818
    , 836].’ ” (People v. Beltran (2013) 
    56 Cal.4th 935
    , 955
    (Beltran).) “ ‘[U]nder Watson, a defendant must show it is reasonably
    probable a more favorable result would have been obtained absent the
    error.’ ” (Ibid.)
    As an initial matter, we note that the mere fact we assume substantial
    evidence supported the lesser included offense instructions (i.e., a reasonable
    jury could have found Quinones guilty of assault, but not of robbery) does not
    in and of itself establish prejudice. “[T]he Watson test for harmless error
    ‘focuses not on what a reasonable jury could do, but what such a jury is likely
    to have done in the absence of the error under consideration. In making that
    evaluation, an appellate court may consider, among other things, whether the
    evidence supporting the existing judgment is so relatively strong, and the
    evidence supporting a different outcome is so comparatively weak, that there
    is no reasonable probability the error of which the defendant complains
    affected the result.’ ” (Beltran, supra, 56 Cal.4th at p. 956, italics omitted.)
    14
    Here, the evidence supporting the jury’s robbery verdict was
    overwhelming. The Jack-in-the-Box employees told police immediately after
    the incident that Quinones stole bills from the cash register and punched the
    manager in the face to get away. As discussed, the employees both testified
    that Quinones grabbed the bills from the register by pushing the manager’s
    hand out of the way, pushed through the manager to leave, then punched the
    manager in the face as he fled the scene. This testimony was supported by
    the surveillance video showing the same. By contrast, the evidence
    supporting a finding that Quinones merely committed assault unconnected to
    the robbery is meager. Quinones points again to the statements made by the
    trial court at sentencing, after the conviction, and the manager’s statement
    that he had turned to go back inside before the punch. Quinones, however,
    concedes the manager’s statement was contradicted by the video and that at
    best the statement showed “he might not have punched the manager for the
    purpose of resisting or accomplishing [the] taking.” (Italics added.) Further,
    Quinones’s other actions—pushing the manager’s hand and pushing past the
    manager out of the store—supported the verdict.
    The evidence that there was an assault separate from the robbery was
    scant. Accordingly, Quinones has not shown he would have achieved a more
    favorable result if the jury had been instructed on assault. Any error was
    therefore harmless under Watson.
    III
    Correction of Clerical Error
    Quinones brings a clerical error in the trial court’s August 8, 2019
    minute order to this court’s attention and asks that the order be corrected.
    The Attorney General does not oppose the request. The order incorrectly
    states that Quinones was found guilty of “all counts & priors by jury.”
    15
    Quinones, however, admitted the relevant priors. Quinones states that
    correction is needed because his admittance of the priors could be relevant to
    any future sentencing proceedings.
    We agree correction of the record is appropriate and remand to the trial
    court to make the correction. (See People v. Mitchell (2001) 
    26 Cal.4th 181
    ,
    185 [“ ‘It is not open to question that a court has the inherent power to correct
    clerical errors in its records so as to make these records reflect the true facts.
    [Citations.] The power exists independently of statute and may be exercised
    in criminal as well as in civil cases. … The court may correct such errors on
    its own motion or upon the application of the parties.’ ”].)
    DISPOSITION
    The judgment is affirmed, and the matter is remanded with directions
    to the trial court to modify the August 8, 2019 minute order to remove the
    inaccurate statement that the jury rendered a finding on the prior offense
    allegations.
    McCONNELL, P. J.
    WE CONCUR:
    AARON, J.
    GUERRERO, J.
    16