People v. Taylor CA4/1

Filed 3/16/15 P. v. Taylor 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066125
Plaintiff and Respondent,
v. (Super. Ct. No. JCF29124)
JAMES RANDOLPH TAYLOR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Donal B.
Donnelly, Judge. Affirmed as modified.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury found James Randolph Taylor guilty of one count of continuous sexual
abuse upon a child (Pen. Code, § 288.5, subd. (a))1 and made a true finding that Taylor
was previously convicted of committing a lewd act upon a child, which was alleged as a
qualifying prior offense for purposes of the Three Strikes law, the One Strike law, and the
Habitual Sex Offender law. (§§ 667, subds. (b)-(i), 667.61, subds. (a) & (d), 667.71.)
The trial court sentenced Taylor to prison for a term of 55 years to life and, as relevant
here, ordered Taylor to pay a $300 restitution fine and a $300 suspended parole
revocation restitution fine (§§ 1202.4, subd. (b), 1202.45).
Taylor contends (1) the trial court abused its discretion in overruling an objection
asserted on the ground of relevancy during the prosecutor's questioning of Taylor on
cross-examination about the charges in his prior molestation case; (2) the prosecutor
committed misconduct during closing argument when she described the burden of proof;
(3) defense counsel was ineffective because he did not object to the prosecutor's
misconduct; and (4) the trial court improperly imposed a restitution fine and a suspended
parole revocation restitution fine of $300 each, as the amount for each fine should have
been $240. We agree with the People's concession on the last point, but we find no merit
to Taylor's remaining arguments. Accordingly, we order the amount of the restitution
fine and the suspended parole revocation restitution fine to be modified to $240 each, and
as so modified, we affirm the judgment.
1 Unless otherwise indicated, all further statutory references are to the Penal Code.
2
I
FACTUAL AND PROCEDURAL BACKGROUND
In July 2012, a 13-year-old female relative of Taylor (the Child) reported to
another adult family member that Taylor had been sexually molesting her.
The police arrested Taylor, and he was charged in the alternative with either three
counts of forcible lewd acts upon a child (§ 288, subd. (b)(1)) based on three specific
instances of sexual conduct with the Child in 2011 and 2012, or one count of continuous
sexual abuse of a child under the age of 14 (§ 288.5, subd. (a))2 occurring between
May 1, 2011 and June 30, 2012. The information also alleged that Taylor had incurred a
previous conviction for committing a lewd act upon a child in 1992 (§ 288, subd. (a)),
which was alleged to constitute a prior strike under the Three Strikes law (§ 667, subds.
(b)-(i)), and to be a prior qualifying offense both for purposes of the One Strike law
(§ 667.61, subdivision (d)) and the Habitual Sex Offender law (§ 667.71).
At trial, the Child testified that for several years Taylor had been molesting her
two or three times a week in the living room of Taylor's home. According to the Child,
on each incident Taylor would take off his clothes, tell the Child to take off her clothes,
and then touch the Child's breasts, genitals and buttocks with his hands, and sometimes
his tongue, while he masturbated or had the Child masturbate him until he ejaculated.
2 Section 288.5 makes it a crime to engage in three or more acts of substantial
sexual conduct, as defined in section 1203.066, or three or more acts of lewd or
lascivious conduct as defined in section 288, over a period in excess of three months with
a child under the age of 14 with whom the defendant resides or has recurring access.
(§ 288.5, subd. (a).)
3
During some of the incidents, pornography was playing on the television. The Child
testified that Taylor told her not to disclose the molestation to anyone, and she did not do
so because she was afraid that Taylor would hurt her. The Child testified that the last
time Taylor molested her, he attempted to have intercourse with her on the kitchen table.
The Child refused to have intercourse, and Taylor let her leave the room. Shortly after
that incident, at the age of 13, the Child reported the molestation to another adult family
member.
At trial, Taylor's two sons, who were 11 and 12 years old, respectively, when the
Child disclosed the molestation, testified that they had inadvertently walked into the
living room on occasions when Taylor was molesting the Child and witnessed both
Taylor and the Child naked and engaging in sexual activity. The sons both also testified
that Taylor had warned them not to disclose the molestation, and that the Child had
confided in them about the molestation and said that she wanted it to stop.
During motions in limine, the trial court ruled that pursuant to Evidence Code
section 1108 it would allow the introduction of evidence about a lewd act that Taylor
pled guilty to committing on a seven-year-old female family member in 1992.
Accordingly, the victim of the 1992 molestation testified at trial. Specifically, she
testified that when sitting in the front passenger seat of a car driven by Taylor, she saw
that Taylor's penis was sticking out of his shorts and pointed it out to him. Taylor pulled
over the car and asked the girl if she wanted to touch his penis. The girl refused, but
Taylor grabbed her hand and placed it on his penis.
4
At trial, the mother of the victim of the 1992 molestation also testified about the
relevant events, explaining that the 1992 incident came to light because Taylor disclosed
it to her the day it occurred, although in describing the incident to her, Taylor claimed
that the girl asked to touch his penis when she saw it sticking out of his shorts. Relevant
to the 1992 molestation, during the prosecution's case the trial court also admitted into
evidence (1) a certified copy of the complaint in the 1992 case against Taylor, charging
him with two counts of committing forcible lewd acts upon a child (the 1992 Complaint);
and (2) certified court minutes showing that Taylor pled guilty to an amended complaint,
charging him with one count of committing a nonforcible lewd act.
Taylor testified in his own defense at trial. He denied molesting the Child and
claimed that the allegations may have stemmed from the fact that the Child had
inadvertently seen him masturbating in the living room on two occasions while he was
watching pornography. Taylor also testified about the 1992 molestation. As he
described the incident, the seven-year-old girl voluntarily touched his penis when he
asked her whether she wanted to do so after she saw Taylor's penis sticking out of his
shorts. According to Taylor, he then asked the girl if he could see her genitals, to which
she responded by voluntarily pulling aside her panties.
Presented with the alternative of finding Taylor guilty of either committing three
forcible lewd acts upon a child (§ 288, subd. (b)(1)), or committing one count of
continuous sexual abuse upon a child (§ 288.5, subd. (a)), the jury found Taylor guilty of
committing continuous sexual abuse. The jury also made a true finding that Taylor
incurred a conviction for committing a lewd act upon a child in 1992.
5
The trial court imposed a prison sentence of 55 years to life along with a $300
restitution fine and a $300 suspended parole revocation restitution fine (§§ 1202.4,
subd. (b), 1202.45).
II
DISCUSSION
A. The Trial Court Did Not Prejudicially Err in Overruling the Objection to the
Prosecutor's Question About the Charges Against Taylor in the 1992 Complaint
Taylor's first argument is that the trial court improperly overruled an objection that
defense counsel made during the prosecutor's cross-examination of Taylor.
During cross-examination of Taylor, the prosecutor explored the issue of whether,
as Taylor testified, the victim of the 1992 molestation voluntarily touched his penis, or
whether, as the victim testified, Taylor grabbed her hand and forcibly placed it on his
penis. In the course of that questioning, the prosecutor asked Taylor about whether the
1992 Complaint charged him with forcible lewd acts. Specifically, immediately after
Taylor described the purportedly voluntary nature of the victim's participation in the 1992
molestation, the following exchange took place:
"Q: So when she said that you forced her to do this, she is lying?
"A: I didn't threaten her. I didn't threaten her. No use of force that I
remember.
"Q: Isn't it true that you were charged with two counts of a forcible lewd
act upon a child?
"[Defense counsel]: Objection; relevance.
"The Court: Overruled. You may answer.
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"[Taylor]: There was two lewd and lascivious acts with a minor.
"[Defense counsel]: And one of them was for you placing her hand on your
penis and one of them was for you touching her vagina; isn't that correct?
"A: There [sic] was not clear what each one was. It was just two lewd
acts."
Taylor contends that the trial court erred in overruling defense counsel's objection,
on the ground of relevancy, to the prosecutor's question about whether Taylor was
charged in 1992 with two counts of committing a forcible lewd act. He claims "the
nature of the allegations selected by the prosecutor in that prior case had no relevancy to
the case at bar."
"A witness may not be examined on matters that are irrelevant to the issues in the
case." (People v. Mayfield (1997) 14 Cal.4th 668, 755.) In determining whether the trial
court erred in sustaining an objection to a question during the examination of a witness
made on the grounds of relevancy, we apply an abuse of discretion standard of review.
(People v. Alvarez (1996) 14 Cal.4th 155, 205 [applying an abuse of discretion standard
of review when considering whether the trial court properly sustained an objection to a
question during trial examination on the ground that any response would be irrelevant].)
As the Evidence Code establishes, "[r]elevant evidence' means evidence, including
evidence relevant to the credibility of a witness or hearsay declarant, having any tendency
in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action." (Id., § 210.) Taylor concedes that the "facts underlying
[the] prior offense were relevant" to the issues presented in this prosecution. We agree.
As the trial court explained in deciding to admit the evidence of the 1992 molestation,
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because of the similarities of that molestation with the allegations against Taylor in this
case, the prior molestation was probative on the issue of whether Taylor had the
disposition to commit another similar molestation here.3
However, Taylor attempts to draw a distinction between the relevance of the facts
of the 1992 molestation and the relevance of the charges alleged in the 1992 Complaint.
We reject the distinction. The charges in the 1992 Complaint are relevant because they
tend to support the credibility of the victim's memory of the molestation as consistent
with what she told authorities in 1992. The fact that the 1992 Complaint charged Taylor
with forcible lewd acts supports an inference that the victim gave evidence to authorities
at the time of the molestation in 1992 describing forcible lewd acts. The charges in the
1992 Complaint therefore have some relevance to the disputed factual issue in this case
of whether the victim accurately testified many years later about the incident, describing
the incident as Taylor's forcible act of placing her hand on his penis.4
3 As permitted by Evidence Code section 1108, the trial court admitted the evidence
of the 1992 molestation as prior conduct which showed Taylor's disposition to commit
another similar molestation. Evidence Code section 1108, subdivision (a) provides that
in a sex crime prosecution, evidence of the defendant's commission of another sexual
offense is not made inadmissible by Evidence Code section 1101's bar on the admission
of character evidence to prove conduct on a specified occasion.
4 Taylor cites People v. Willard (2007) 154 Cal.App.4th 1329, 1335, to argue that
the allegations of the 1992 Complaint are irrelevant because they do not constitute
evidence of the 1992 molestation. However, Willard is inapplicable, as it deals with
whether factual corroboration for a guilty plea may be based solely on the factually bare
contents of the specific criminal complaint against the defendant, which is not the issue
presented here.
8
"The permissible scope of cross-examination of a defendant is generally broad.
'When a defendant voluntarily testifies, the district attorney may fully amplify his
testimony by inquiring into the facts and circumstances surrounding his assertions, or by
introducing evidence through cross-examination which explains or refutes his statements
or the inferences which may necessarily be drawn from them.' " (People v. Chatman
(2006) 38 Cal.4th 344, 382.) Here, the prosecutor's question about the charges in the
1992 Complaint was permissible because it was aimed at "fully amplify[ing]" Taylor's
testimony about the details of the 1992 molestation through questioning about the charges
in the 1992 Complaint that lent support to the credibility of the victim's trial testimony
about how the molestation occurred. (Ibid.) The trial court was accordingly well within
its discretion to overrule defense counsel's objection to the question.
Moreover, even were Taylor to establish that it was error for the trial court to
overrule the objection, any error would be harmless. (People v. Fuiava (2012) 53 Cal.4th
622, 671 [even assuming testimony should have been excluded as irrelevant, any error
was harmless because there was no reasonable probability the jury would have reached a
more favorable verdict had the trial court sustained the objection].) Taylor contends the
objection should have been sustained because the prosecutor was attempting to put
irrelevant information before the jury about the charges in the 1992 Complaint, and it
harmed his case for the jury to know that he was charged with forcible lewd acts in 1992.
However, at the time of Taylor's testimony, the 1992 Complaint had already been
9
admitted into evidence.5 Indeed, during closing argument, the prosecutor specifically
drew the jury's attention to the certified copy of the 1992 Complaint that the trial court
had admitted into evidence, explaining that Taylor had been charged in 1992 with two
counts of forcible lewd acts upon a child, although he eventually pled guilty to one count
of a nonforcible lewd act. Because the 1992 Complaint was already before the jury and
the prosecutor specifically drew the jury's attention to that document at closing argument,
Taylor cannot establish that it is reasonably probable that he would have obtained a more
favorable verdict had the trial court sustained the objection to the prosecutor's question
about the 1992 Complaint during cross-examination of Taylor.
B. Taylor Has Forfeited His Claim of Prosecutorial Misconduct
We next consider Taylor's contention that the prosecutor committed misconduct
during closing argument by incorrectly describing the burden of proof.
" 'The standards governing review of [prosecutorial] misconduct claims are settled.
"A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits
misconduct, and such actions require reversal under the federal Constitution when they
5 Although defense counsel asserted an objection to some of the documentation
relating to the 1992 molestation, contending that foundation as to authenticity was
lacking and that probation officer reports were not relevant, he did not object to admitting
the 1992 Complaint into evidence on any ground, including lack of relevance. We note
that Taylor argues on appeal that he should not have been required to make a subsequent
objection to the introduction of the 1992 Complaint on the basis of relevancy after
already having made that objection during Taylor's testimony. However, this argument
fails because it is based on an incorrect understanding of the order of events at trial. As
we have explained, the certified copy of the 1992 Complaint had already been admitted
into evidence at the time of Taylor's testimony, without objection.
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infect the trial with such ' "unfairness as to make the resulting conviction a denial of due
process." ' [Citations.] Under state law, a prosecutor who uses such methods commits
misconduct even when those actions do not result in a fundamentally unfair trial." '
[Citation.] [¶] ' "As a general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be admonished
to disregard the impropriety." ' " (People v. Hajek (2014) 58 Cal.4th 1144, 1238
(Hajek).)
As the basis for his prosecutorial misconduct claim, Taylor points to the following
statement made during the prosecutor's closing argument:
"Beyond a reasonable doubt is not proof beyond all doubt. It is proof that
leaves you with an abiding conviction the charge is true. Abiding means
lasting, conviction, belief. So a lasting belief the charge is true. Now, the
defense is going to get up here and tell you that, you know, this is such a
high standard. It's a really tough burden that I can never ever meet. Well,
we meet it in courtrooms every single day. This is not an impossible
burden. So it's something that — as long as the evidence leaves you with a
lasting conviction the charge is true, you can convict." (Italics added.)
Focusing on the italicized portion of the prosecutor's statement, Taylor claims that
the prosecutor committed misconduct by "impermissibly diminish[ing] the proof beyond
a reasonable doubt standard and undermin[ing] the presumption of innocence."
Specifically, Taylor argues that (1) "lasting belief " is not an accurate synonym for the
phrase "abiding conviction," which appears in the jury instructions on reasonable doubt;
and (2) the prosecutor improperly suggested that the reasonable doubt standard is not
"such a high standard."
11
Without reaching the merits of Taylor's prosecutorial misconduct argument, we
conclude that the argument has been forfeited. As we have explained, a defendant may
generally not complain on appeal of prosecutorial misconduct unless he has timely
objected and requested that the jury be admonished. (Hajek, supra, 58 Cal.4th at
p. 1238.) Here, defense counsel did not object to the prosecutor's statements about the
burden of proof during closing argument, and made no request that the jury be
admonished. Although the "defendant's failure to object will be excused if an objection
would have been futile or if an admonition would not have cured the harm caused by the
misconduct" (People v. Centeno (2014) 60 Cal.4th 659, 674), Taylor makes no attempt to
argue that an objection or admonition would have been futile. Indeed, as our Supreme
Court recently pointed out in a similar context, "[a] prosecutor's misstatements of law are
generally curable by an admonition from the court." (Ibid.) We therefore conclude that
Taylor may not pursue the issue of prosecutorial misconduct on appeal because the issue
has been forfeited.
C. Taylor Has Failed to Establish That Counsel Was Ineffective for Failing to Object
to the Alleged Prosecutorial Misconduct
Acknowledging that defense counsel may have forfeited the prosecutorial
misconduct argument by not objecting during closing argument, Taylor contends that
defense counsel was ineffective for failing to object.
"A defendant whose counsel did not object at trial to alleged prosecutorial
misconduct can argue on appeal that counsel's inaction violated the defendant's
constitutional right to the effective assistance of counsel. The appellate record, however,
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rarely shows that the failure to object was the result of counsel's incompetence; generally,
such claims are more appropriately litigated on habeas corpus, which allows for an
evidentiary hearing where the reasons for defense counsel's actions or omissions can be
explored. (People v. Lopez (2008) 42 Cal.4th 960, 966.)
"Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) A defendant
claiming ineffective assistance of counsel has the burden to show: (1) counsel's
performance was deficient, falling below an objective standard of reasonableness under
prevailing professional norms; and (2) the deficient performance resulted in prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 687; Ledesma, at pp. 216, 218.)
Prejudice is shown when "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome." (Strickland, at p. 694.)
Further, as is important here, "[r]eviewing courts reverse convictions on direct
appeal on the ground of incompetence of counsel only if the record on appeal
demonstrates there could be no rational tactical purpose for counsel's omissions."
(People v. Lucas (1995) 12 Cal.4th 415, 442; see People v. Anderson (2001) 25 Cal.4th
543, 569.) "In the usual case, where counsel's trial tactics or strategic reasons for
challenged decisions do not appear on the record, we will not find ineffective assistance
13
of counsel on appeal unless there could be no conceivable reason for counsel's acts or
omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
Taylor has not established that defense counsel performed below the standard of
care by failing to object to the prosecutor's statements, as defense counsel could
reasonably have determined that the statements were not objectionable. Taylor's first
contention is that defense counsel should have objected when the prosecutor suggested
that "lasting belief" is a synonym for the phrase "abiding conviction." However, defense
counsel could reasonably have decided that the prosecutor's statement was proper based
on case law that acknowledges that the term "abiding" is often equivalent to the term
"lasting." (People v. Haynes (1998) 61 Cal.App.4th 1282, 1299 [in the context of
discussing the jury instruction on reasonable doubt, explaining that " '[a]biding' may
commonly mean lasting or enduring"]; People v. Light (1996) 44 Cal.App.4th 879, 885
[" 'abiding conviction' " conveys "the requirement that the jurors' belief in the truth of the
charge must be both long lasting and deeply felt"].) Taylor's second contention is defense
counsel should have objected when the prosecutor purportedly suggested that the
reasonable doubt standard is not "such a high standard." However, Taylor's argument
depends on a mischaracterization of the prosecutor's statement. When read in whole, the
substance of the prosecutor's comment was that the reasonable doubt standard was not
"such a high standard" that it was "an impossible burden." Defense counsel could
reasonably have concluded that because the reasonable doubt standard is not an
impossible burden the prosecutor's statement was an accurate reflection of the law and
thus was not objectionable.
14
Further, as we have explained, we will reverse on the ground of ineffective
assistance of counsel " 'only if the record on appeal affirmatively discloses that counsel
had no rational tactical purpose for his act or omission.' " (People v. Zapien (1993) 4
Cal.4th 929, 980.) Here, even if defense counsel believed there was anything
objectionable about the prosecutor's statements, he could have made the reasonable
tactical decision to use his own closing argument to address any misleading statements by
the prosecutor about reasonable doubt rather than objecting. Indeed, defense counsel
spent a significant portion of his closing argument addressing the concept of reasonable
doubt, specifically referring back to the prosecutor's comments on the issue and using
them to segue into his own explanation of the burden of proof.6
Based on the above, we conclude that Taylor has failed to establish ineffective
assistance of counsel as a ground for reversal.
D. The Restitution Fine and the Suspended Parole Restitution Revocation Fine Were
Improperly Calculated
At the May 30, 2014 sentencing hearing, the trial court imposed a restitution fine
in the amount of $300. (§ 1202.4, subd. (b).) It also imposed a parole revocation
restitution fine in the same amount, which it suspended (§ 1202.45).
Taylor contends, and the People agree, that because the trial court indicated that it
intended to impose the statutory minimum restitution fine, it should have set the fines in
6 For example, referring specifically to the prosecutor's statement about the burden
of proof, defense counsel stated during closing argument, "[the prosecutor] says that I am
arguing to you that that burden of proof is impossible. No. It's not impossible . . . ."
15
the amount of $240 each, which was the statutorily provided minimum fine at the time
Taylor committed the offense, instead of $300, which was the statutorily provided
minimum fine at the time of sentencing. (§ 1202.4, subd. (b).) As we will explain, we
agree with the parties.
Section 1202.4, subdivision (b)(1) provides for a restitution fine in an amount set
at the discretion of the trial court "commensurate with the seriousness of the offense," but
states that, except in extraordinary circumstances, the fine must be no less than a
minimum amount set by statute. Here, the trial court indicated at sentencing that it was
imposing the "minimum mandatory . . . restitution fine" of $300. (Italics added.) Further,
as the parole revocation restitution fine in section 1202.45 was required to be in the same
amount as the restitution fine imposed under section 1202.4, subdivision (b) (§ 1202.45,
subd. (a)), the trial court also selected $300 for the amount of the parole revocation
restitution fine.
The relevant statutory minimum fine is specified in section 1202.4, subdivision
(b)(1). "If the person is convicted of a felony, the fine shall not be less than two hundred
forty dollars ($240) starting on January 1, 2012, two hundred eighty dollars ($280)
starting on January 1, 2013, and three hundred dollars ($300) starting on January 1,
2014 . . . ." (Ibid.)
"A restitution fine qualifies as punishment for purposes of the prohibition against
ex post facto laws." (People v. Saelee (1995) 35 Cal.App.4th 27, 30.) Thus, to avoid
violation of the ex post facto laws, when calculating the applicable minimum amount of a
restitution fine, the trial court must look to the fine authorized as of the date of the
16
offense, not the date of sentencing. (People v. Valenzuela (2009) 172 Cal.App.4th 1246,
1248 (Valenzuela); People v. Martinez (2014) 226 Cal.App.4th 1169, 1190 (Martinez).)
Here, section 1202.4, subdivision (b)(1) provides that the minimum restitution fine
applicable at the time Taylor committed the last act of the continuing sexual abuse in
June of 2012 was $240. Accordingly, in setting the restitution fine at the statutory
minimum, the trial court should have specified the amount of $240, not $300. Further, as
section 1202.45, subdivision (a) requires that the parole revocation restitution fine be in
the same amount as the restitution fine imposed under section 1202.4, subdivision (b)(1),
the trial court also should have specified the amount of $240 for the parole revocation
restitution fine. (See Martinez, supra, 226 Cal.App.4th at p. 1190 [ordering that the
parole revocation restitution fine be modified to be set at the same amount as the
modified amount of the restitution fine].)
Although defense counsel did not object to the amount of the restitution fine and
parole revocation restitution fine, we have the discretion to modify the judgment to
correct the sentence (see Valenzuela, supra, 172 Cal.App.4th at pp. 1248-1249), and the
People agree that we should do so. We accordingly will order that judgment be modified
to reduce the restitution fine imposed under section 1202.4, subdivision (b)(1) to $240,
and to reduce the suspended parole revocation restitution fine to $240 as well
(§ 1202.45).
DISPOSITION
The judgment is modified by reducing the restitution fine and the parole
revocation restitution fine to $240 each. As modified, the judgment is affirmed. The trial
17
court is directed to amend the abstract of judgment accordingly and forward a copy of the
amended abstract of judgment to the Department of Corrections and Rehabilitation.
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
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