v. Gonzales , 2019 COA 30 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 7, 2019
2019COA30
No. 16CA0750, People v. Gonzales — Evidence — Requirement
of Authentication or Identification — Audio Recordings
In a case involving the submission of a voicemail as evidence,
the division addresses the standards for authenticating an audio
recording under CRE 901 and declines to follow People v. Baca,
2015 COA 153, to the extent that it purports to establish an
exclusive rule for the authentication of a voice recording.
The division concludes that CRE 901, which governs the
authentication of evidence in Colorado courts, requires a flexible,
factual inquiry to determine under the facts of each case whether a
reasonable jury could determine that the proffered evidence is what
its proponent claims. The division states that, in making this
determination, the trial court necessarily has broad discretion to
consider a variety of factors and circumstances and must consider
all relevant circumstances that bear on whether a recording is what
it purports to be.
Applying this analysis, the division concludes that the trial
court did not abuse its discretion in admitting the contested
voicemail.
The division also concludes that the trial court did not abuse
its discretion in admitting a photograph of the defendant’s bare
torso and arms that showed the defendant’s tattoos.
COLORADO COURT OF APPEALS 2019COA30
Court of Appeals No. 16CA0750
City and County of Denver District Court No. 15CR20002
Honorable Sheila A. Rappaport, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Daniel J. Gonzales,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE BERGER
Tow, J., concurs
Taubman, J., specially concurs
Announced March 7, 2019
Philip J. Weiser, Attorney General, Melissa D. Allen, Assistant Attorney
General, Colleen R. Wort, Assistant Attorney General Fellow, Denver, Colorado,
for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Karen N. Taylor, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 This case addresses the standards for authenticating an audio
recording under CRE 901. Defendant, Daniel J. Gonzales, appeals
his convictions for first degree murder with intent and after
deliberation, first degree felony murder, abuse of a corpse, stalking,
arson, burglary, and aggravated robbery. He claims that the trial
court did not comply with the authentication rules prescribed by a
division of this court in People v. Baca, 2015 COA 153, when it
admitted a voicemail purportedly left by Gonzales for his murder
victim.
¶2 We reject Gonzales’s claim because, to the extent Baca
purports to establish an exclusive rule for the authentication of a
voice recording, we decline to follow it. We also conclude that when
the flexible principles of authentication set forth in CRE 901 are
applied, the voicemail was properly authenticated. Finally, we
conclude that the trial court properly admitted a photograph
depicting him shirtless, which exhibited two tattoos on his arms.
Having rejected all of Gonzales’s claims on appeal, we affirm.
I. Relevant Facts and Procedural History
¶3 The evidence admitted at trial, particularly the full confession
Gonzales made to the police, established the following facts.
1
Gonzales grew up down the street from the victim and from a young
age was sexually attracted to the victim. When he was about
eighteen, Gonzales and a friend broke into the victim’s house. The
friend stole a TV and a VCR while Gonzales hunted for clues in the
house that the victim was gay. Gonzales also stole some of the
victim’s clothing.
¶4 Gonzales eventually moved away from the victim’s
neighborhood, but his interest in the victim did not disappear.
Years later, Gonzales returned to the victim’s house, breaking in
through the back door. After gaining entry, Gonzales grabbed a
large knife from the kitchen and waited a substantial period of time
for the victim to return. When he did, Gonzales repeatedly stabbed
him in the neck, killing him. Gonzales then sexually assaulted the
victim’s dead body and attempted, unsuccessfully, to set the house
on fire to destroy the evidence. Gonzales fled the scene with a
credit card, debit card, and cash that he had taken from the
victim’s wallet. He was arrested a short time later in Florida.
¶5 At trial, the prosecution presented a video recording of
Gonzales’s confession, as well as other evidence. The jury convicted
Gonzales of all charges, the court sentenced him to life in prison
2
without the possibility of parole plus forty-eight years, and he now
appeals.
II. The Trial Court Did Not Abuse Its Discretion When It Admitted
the Voicemail
¶6 Gonzales first argues that the trial court erred in admitting a
voicemail allegedly left by Gonzales for the victim because the
prosecution did not properly authenticate the recording of the
voicemail under the test set out in Baca, ¶ 30.
¶7 We review a trial court’s evidentiary rulings for an abuse of
discretion. Davis v. People, 2013 CO 57, ¶ 13. A trial court abuses
its discretion if its ruling is manifestly arbitrary, unreasonable, or
unfair, or if its ruling is based on an erroneous view of the law.
People v. Hard, 2014 COA 132, ¶ 22.
A. Additional Factual Background
¶8 After the police completed their crime scene analysis, the
victim’s sister went to the house to put the victim’s affairs in order.
She found a microcassette audiotape along with documents related
to an earlier burglary of the victim’s house. On the tape, a man
says that he has the victim’s pajamas and jeans. He also says that
he is going to return those items to the victim, but not the other
3
items that were stolen. The sister listened to the tape and,
recognizing its value, gave it to the police.
¶9 At trial, one of the detectives who had interviewed Gonzales
after his arrest testified that he had also watched the video of that
interview and had compared Gonzales’s voice in the interview to the
voice on the tape. The detective testified that the voice on the tape
sounded like Gonzales’s voice. On that basis, the prosecutor
argued that the tape recording had been properly authenticated.
Gonzales objected to the admission of the tape recording of the
voicemail on authentication grounds, but the trial court overruled
the objection.
B. Analysis
¶ 10 In Baca, a division of this court held that
[i]f no witness with independent knowledge of
the content of the [recording] can verify the
accuracy of the recorded conversation, the
proponent must instead present a witness who
can verify the reliability of the recording
process, by establishing the factors laid out in
Alonzi: the competency of the recorder, the
reliability of the recording system, the absence
of any tampering with the recording, and the
identification of the speakers.
4
Baca, ¶ 30 (citing Alonzi v. People, 198 Colo. 160, 163, 597 P.2d
560, 562 (1979)). In so doing, the division appears to have
established an exclusive rule, regardless of the factual
circumstances presented, to authenticate an audio recording. 1
¶ 11 In devising its exclusive test for the authentication of an audio
recording, the division relied on the Colorado Supreme Court’s
Alonzi decision (and other authorities) that predated the supreme
court’s adoption of the Colorado Rules of Evidence. Baca, ¶¶ 26-28,
30.
¶ 12 The Attorney General argues that Baca was wrongly decided
and is inconsistent with the language and underlying purpose of
CRE 901. To the extent that Baca holds that the only way an audio
———————————————————————
1 In People in Interest of M.V., 2018 COA 163, a different division of
this court relied, in part, on People v. Baca, 2015 COA 153, to
determine whether a video recording was authentic.
5
recording can be authenticated is to meet one of the two
alternatives stated in Baca, 2 we agree with the Attorney General.3
1. CRE 901 Does Not Prescribe Exclusive Tests for the
Authentication of Evidence; Instead, CRE 901 Requires Trial
Courts to Consider All the Circumstances Surrounding the
Evidence
¶ 13 “The burden to authenticate ‘is not high — only a prima facie
showing is required,’ and ‘a district court’s role is to serve as a
gatekeeper in assessing whether the proponent has offered a
satisfactory foundation from which the jury could reasonably find
that the evidence is authentic.’” People v. Glover, 2015 COA 16,
———————————————————————
2 Even if Baca’s holding is tethered to its specific facts — a jailhouse
telephone recording offered by a defendant in a criminal case — it
may be too broad. As the present case well illustrates, there will be
innumerable factual situations that are impossible to anticipate in
which the Baca test may prove too rigid. We cannot exclude the
possibility that there will exist some factual circumstances that
would provide sufficient authentication of a jailhouse recording
without meeting the requirements of Baca.
3 Our holding creates a division split on this question. Unless and
until the supreme court resolves the division conflict, the district
courts may choose which of the conflicting decisions of the court of
appeals to follow. See C.A.R. 35(e) (“Opinions designated for official
publication must be followed as precedent by all lower court judges
in the state of Colorado.”); see also People v. Valdez, 2014 COA 125,
¶ 27 (stating that when the law is unsettled, in this case because of
a split among divisions of the court of appeals, the trial court’s
alleged error with respect to the law cannot constitute plain error).
6
¶ 13 (quoting United States v. Hassan, 742 F.3d 104, 133 (4th Cir.
2014)).
¶ 14 CRE 901, not common law decisions that predate the adoption
of the Colorado Rules of Evidence, governs the authentication of
evidence in Colorado courts. See People v. Ramirez, 155 P.3d 371,
374-75 (Colo. 2007) (The Colorado Rules of Evidence “govern the
admissibility of expert testimony”; prior to the adoption of these
rules, “admissibility of expert testimony was governed by common
law.”).
¶ 15 There is only one rule stated in CRE 901. “The requirement of
authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims.” CRE
901(a). The balance of CRE 901 is a series of “illustrations,” not
black-letter rules. Subsection (b) explicitly states that the examples
given are “[b]y way of illustration only, and not by way of
limitation.”
¶ 16 Notably, one such illustration states that “[i]dentification of a
voice, whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice
7
at any time under circumstances connecting it with the alleged
speaker” is consistent with the authentication requirements in CRE
901(a). CRE 901(b)(5). In our view, this illustration does not
establish that a voice recording can always be authenticated by a
voice identification alone. 4 But this illustration, along with the
others included in CRE 901(b), does demonstrate that the relevant
considerations in authenticating a voice recording are not limited to
those set out in Baca.
¶ 17 The Baca division relied heavily on a decision by the Colorado
Supreme Court that predated the adoption of the Colorado Rules of
Evidence. Baca, ¶¶ 26-27, 29 (citing Alonzi, 198 Colo. at 163, 597
P.2d at 562). Alonzi, in turn, “note[d] with approval the test set out
in United States v. Biggins, 551 F.2d 64 (5th Cir. 1977),” which is
similar to the test established in Baca. 198 Colo. at 163, 597 P.2d
at 562. But, in a portion of Biggins not quoted by the supreme
court in Alonzi (and not noted by the Baca division), the Fifth
Circuit also stated, “[i]f the trial judge independently determines
———————————————————————
4 As we read Baca, for purposes of its first alternate authentication
method, the identification of a voice alone is insufficient to
authenticate a recording.
8
that the recording accurately reproduces the auditory evidence,
however, his discretion to admit the evidence is not to be sacrificed
to a formalistic adherence to the standard we establish.” 551 F.2d
at 67.
¶ 18 Moreover, there is a real question whether the portion of Alonzi
relied on by the Baca division was dictum. As stated by the
supreme court, the precise question presented in Alonzi was
whether the proponent of an audio recording was required to prove
a chain of custody. Alonzi, 198 Colo. at 163, 597 P.2d at 562. The
supreme court held that a chain of custody was not always
required. Id. Having definitively answered the question raised by
the appellant, the court nevertheless addressed other matters not
necessary to its decision. Id.¶ 19 Even if the supreme court’s statements in Alonzi regarding the
required methods to authenticate an electronic recording constitute
a holding of the court, and not dictum, the source of authority for
both Alonzi and the Colorado Rules of Evidence is the same — the
Colorado Supreme Court. See Colo. Const. art. VI, § 21; Forma Sci.,
Inc. v. BioSera, Inc., 960 P.2d 108, 116 (Colo. 1998) (“The Colorado
Rules of Evidence were adopted under this court’s rule-making
9
powers articulated in the Colorado Constitution.”). When the
Colorado Supreme Court exercises its constitutional authority and
adopts a rule of procedure or evidence that conflicts with an earlier
opinion of that court, the later precedent or rule controls, not the
former. See Ramirez, 155 P.3d at 374-75.
¶ 20 Neither the language of CRE 901 nor its underlying purpose
supports the prescription of two exclusive methods to authenticate
a voice recording. As noted above, CRE 901 does not set forth any
categorical or exclusive rules. To the contrary, the very structure of
CRE 901 eschews such categorical rules. As a division of this court
stated in Glover, ¶ 25 (quoting Tienda v. State, 358 S.W.3d 633, 639
(Tex. Crim. App. 2012)), in the context of authenticating records
from Facebook or another social networking website, “jurisdictions
across the country have recognized that electronic evidence may be
authenticated in a number of different ways consistent with Federal
Rule 901 and its various state analogs.”
¶ 21 We agree that CRE 901 contemplates a flexible, factual inquiry
to determine under the facts of each case whether a reasonable jury
could determine that the proffered evidence “is what its proponent
claims.” Glover, ¶ 12. In making this determination, the trial court
10
necessarily has broad discretion to consider a variety of factors and
circumstances.
¶ 22 In some cases, under some circumstances, particularly when
there is a colorable claim that a recording has been altered, the
factors discussed in Baca may be highly pertinent to the
authenticity determination. In other cases, the factors identified by
Baca may be inapplicable or unnecessary.
¶ 23 The deficiencies of such a categorical rule are illustrated by
the facts in State v. Smith, 540 P.2d 424 (Wash. 1975). In that
murder case, the victim took the precaution of carrying a tape
recorder with him while keeping an appointment with the murderer.
Id. at 426. During the victim’s autopsy, the authorities found the
tape recording. Id. Despite the fact that the recording did not
satisfy categorical common law rules for authentication similar to
those adopted in Baca, the Washington Supreme Court held that
the recording was admissible on the basis of scientific testimony
and other evidence corroborating its accuracy and completeness.
Id. at 429.
¶ 24 Or, take the hypothetical situation where a serial killer keeps
an oral diary of his activities. After the killer’s arrest, the police find
11
the oral diary in his residence. No recording equipment is found in
the house. A police detective who has interviewed the killer testifies
that the voice on the tape is that of the defendant. As we read
Baca, the diary would be inadmissible even though, under the
circumstances, the recording would be highly probative and reliable
evidence of the crimes.
¶ 25 Other courts, applying their versions of Fed. R. Evid. 901,
have rejected the common law standards typified by Alonzi, Biggins,
and Baca in favor of a more flexible approach.5 For example, the
Michigan Supreme Court concluded that Michigan’s adoption of
Fed. R. Evid. 901 abrogated the more specific common law
reliability of recording process factors, in favor of a more flexible
approach. People v. Berkey, 467 N.W.2d 6, 10-12 (Mich. 1991); see
also Angleton v. State, 971 S.W.2d 65, 68-69 (Tex. Crim. App. 1998)
(en banc) (same, applying Texas equivalent of CRE 901); State v.
———————————————————————
5 When the Colorado Supreme Court adopted the Colorado Rules of
Evidence, CRE 901 was substantively identical to Fed. R. Evid. 901.
Thus, interpretations of Fed. R. Evid. 901 are highly persuasive in
our interpretation of CRE 901. See People v. Short, 2018 COA 47,
¶ 41. In 2011, many of the Federal Rules of Evidence were
rewritten in more contemporary language, but no substantive
changes were intended. Fed. R. Evid. 901 advisory committee’s
note to 2011 amendments.
12
Jackson, 54 P.3d 739, 742-43 (Wash. Ct. App. 2002)
(acknowledging reliability of recording process factors but holding
that those factors are not the exclusive determinants of
authenticity).
¶ 26 As the Eighth Circuit has observed, “[p]rivate use of recording
equipment has become widespread,” and therefore specific factors
relating to the reliability of the recording process “should be applied
in a practical light to assure the reliability of the recorded material,”
rather than in a “mechanical or wooden” manner. United States v.
O’Connell, 841 F.2d 1408, 1420 (8th Cir. 1988). The same court
noted that recordings discovered by the police should not “be
subject to the same requirements [that courts] apply when a
government agent or informant initiates a conversation knowing
that it is to be recorded.” Id.; see also Angleton, 971 S.W.2d at 68(“[T]he government does not have to prove when, where, how, and
by whom tape recordings were made, when those recordings were
recovered from the defendant or an alleged co-defendant, were not
created as a result of government involvement, were not tampered
with, and the defendant is identified as a speaker on the tape.”).
13
¶ 27 Similarly, authoritative treatises addressing Fed. R. Evid. 901
have recognized that the rule establishes flexible procedures for
determining the authenticity of an electronic recording. See, e.g., 8
Michael H. Graham, Handbook of Federal Evidence § 901:5,
Westlaw (8th ed. database updated Nov. 2018) (“The specific
requirements for authentication of sound recordings vary depending
upon the circumstances.”); 5 Christopher B. Mueller & Laird C.
Kirkpatrick, Federal Evidence § 9:14, Westlaw (4th ed. database
updated July 2018) (“[M]ost courts refuse to be pinned down to the
[common law] approach and favor greater flexibility in assessing
authenticity of recorded evidence.”); 31 Charles A. Wright & Victor
J. Gold, Federal Practice and Procedure § 7110, Westlaw (1st ed.
database updated Nov. 2018) (“[I]n the case of telephone
communications the trier of fact undoubtedly is familiar with the
device and well aware of the potential for problems, thus alleviating
the need for a detailed foundation.”). 6
———————————————————————
6 2 Kenneth S. Broun, McCormick on Evidence § 216 n.29, Westlaw
(7th ed. database updated June 2016), describes strict rules similar
to the ones adopted in Baca, but then refers to People v. Sangster, 8
N.E.3d 1116 (Ill. App. Ct. 2014) “[f]or an example of a more relaxed
foundation.” McCormick then contrasts the approach in Sangster
with the approach in People v. Baca, 2015 COA 153.
14
¶ 28 The Alonzi court was legitimately concerned about falsification
of electronic recordings. See Alonzi, 198 Colo. at 163-64, 597 P.2d
at 562. There is no question that the alteration of electronic
recordings, whether audio or video, is more of a risk today than
when Alonzi was decided in 1979. See Bruce E. Koenig & Douglas
S. Lacey, Forensic Authentication of Digital Audio and Video Files, in
Handbook of Digital Forensics of Multimedia Data and Devices 133
(Anthony T. S. Ho & Shujun Li eds., 2015).
¶ 29 Developments in computer technology and software enable
almost any owner of a personal computer with the necessary
knowledge and software to falsely edit recordings. Id. But, the fact
that the falsification of electronic recordings is always possible does
not, in our view, justify restrictive rules of authentication that must
be applied in every case when there is no colorable claim of
alteration. See People v. Sangster, 8 N.E.3d 1116, 1127 (Ill. App.
Ct. 2014) (“[N]either at trial nor before [the appellate court] did
Sangster make a colorable claim that the recording was other than
authentic or accurate.”).
15
¶ 30 Thus, the trial court must consider all relevant circumstances
that bear on whether a recording is what it purports to be. 7 When a
plausible claim of falsification is made by a party opposing the
introduction of a recording, the court may and usually should apply
additional scrutiny (including, when appropriate, the Baca factors)
to make the preliminary determination entrusted to the trial court:
Could a reasonable jury determine that the thing offered into
evidence is what it purports to be?
2. Application
¶ 31 Applying this flexible approach of CRE 901 to the voicemail in
this case, we conclude that the trial court properly made a
preliminary finding that it was what it purported to be. There was
no claim by Gonzales that the recording was falsified or
manipulated in any way. The recording was found in the decedent’s
house by his sister after the premises were released to her by the
police. A police officer who interrogated Gonzales at length testified
that Gonzales’s voice was heard on the voicemail. These
uncontested facts were sufficient to support a CRE 901 finding that
———————————————————————
7 CRE 104 provides that in making preliminary determinations such
as authenticity, the court is not bound by the rules of evidence.
16
the voicemail was what the prosecutor purported it to be — a
voicemail left by Gonzales for the victim. The ultimate
determinations of whether the voicemail was authentic and the
weight, if any, to be given to it were exclusively for the jury to
determine. See People in Interest of A.C.E-D., 2018 COA 157, ¶ 43;
Glover, ¶ 13.
¶ 32 Accordingly, the trial court did not abuse its discretion in
admitting the voicemail.
III. The Trial Court Correctly Admitted the Photograph of
Gonzales’s Tattoos
¶ 33 In his only other contention of error, Gonzales argues that the
trial court abused its discretion in admitting a photograph showing
Gonzales’s tattoos because it was both irrelevant and highly
prejudicial. We disagree on both fronts.
¶ 34 All relevant evidence is admissible unless prohibited by
constitution, statute, or court rule. CRE 402; Kaufman v. People,
202 P.3d 542, 552 (Colo. 2009). Evidence is relevant if it makes the
existence of any fact of consequence more or less probable. CRE
401. But, even relevant evidence may be excluded “if its probative
value is substantially outweighed by the danger of unfair prejudice.”
17
CRE 403. Evidence is unfairly prejudicial if it has “some undue
tendency to suggest a decision on an improper basis, commonly an
emotional basis, such as bias, sympathy, hatred, contempt,
retribution, or horror.” People v. Cardenas, 2014 COA 35, ¶ 52
(quoting People v. Fasy, 813 P.2d 797, 800 (Colo. App. 1991)).
¶ 35 The photograph at issue shows Gonzales shirtless with two
tattoos on his inner forearms clearly visible. The tattoo on one arm
says “CHUBBY,” and the tattoo on the other says “CHASER.” No
other tattoos are visible in the photograph.
¶ 36 “Evidence of a defendant’s tattoos may be relevant to that
defendant’s intent and motive.” Id. at ¶ 51. The photograph was
relevant to prove Gonzales’s motive. Gonzales said during his police
interview that he was attracted to heavyset men. The photograph
corroborates that statement and supports the prosecution’s theory
that Gonzales targeted the victim because his body type was
consistent with Gonzales’s preferred body type.
¶ 37 Gonzales argues that the photograph was highly prejudicial
because from it the jury could have inferred that Gonzales chased
chubby men with the intention of doing them harm, rather than
because he was sexually attracted to them. But once relevance is
18
established, the inferences drawn from that evidence are solely for
the jury to draw, not an appellate court. See People v. Summit, 132
P.3d 320, 324 (Colo. 2006). Under CRE 403, an appellate court
assumes the maximum probative value of relevant evidence and the
minimum prejudicial value. People v. Gibbens, 905 P.2d 604, 607
(Colo. 1995). Applying that rule here, the trial court acted well
within its discretion in admitting the photograph. Gonzales
admitted both that he was he was attracted to larger men and that
he killed a person who fit that physical description. On these facts,
the jury was entitled to consider the probative value of the tattoos. 8
IV. Conclusion
¶ 38 The judgment of conviction is affirmed.
JUDGE TOW concurs.
JUDGE TAUBMAN specially concurs.
———————————————————————
8 Gonzales also claims that it was unnecessary for the jury to see
his bare torso. But Gonzales does not explain, and we cannot
discern, how the image of his bare torso might incite such “bias,
sympathy, hatred, contempt, retribution, or horror” that it would
render the admission of this evidence improper or prejudicial.
People v. Cardenas, 2014 COA 35, ¶ 52 (quoting People v. Fasy, 813
P.2d 797, 800 (Colo. App. 1991)).
19
JUDGE TAUBMAN, specially concurring.
¶ 39 Although the majority declines to follow People v. Baca, 2015
COA 153, 378 P.3d 780, “to the extent Baca purports to establish
an exclusive rule for the authentication of a voice recording,” I do
not share that interpretation. Supra ¶ 2. As a member of the Baca
division, I agreed with its analysis, and I still do. I also agree with
much of the majority’s analysis in this case and its conclusion that
the microcassette recording that appeared to have the voice of
defendant, Daniel J. Gonzales, was properly admitted.
¶ 40 While some language in Baca suggests that the division
intended to establish an exclusive rule for the authentication of
voice recordings, the Baca division acknowledged that CRE 901(a)
sets forth a broad standard for the authentication of evidence,
including voice recordings. In Baca, the division held that to
authenticate a voice recording, a witness had to show independent
knowledge of the content of a telephone call or an ability to verify
the accuracy of the recording process. That test was especially
appropriate under the facts in that case, which involved the
admissibility of a telephone conversation between a jail inmate and
his mother. In those circumstances, undoubtedly, many inmates
20
made telephone calls, thereby making it necessary to ensure the
identity of the callers to authenticate the phone conversation.
¶ 41 Here, in contrast, the court was concerned with the
admissibility of a microcassette recording found by the victim’s
sister in the victim’s home. In that situation, there was a reduced
likelihood of improper authentication of Gonzales’s voice.
¶ 42 Accordingly, because I agree that the results in both Baca and
this case were correct, I specially concur.
21