People v. Alvarez CA2/6

Filed 1/20/23 P. v. Alvarez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B317490
(Super. Ct. No. 2014023475)
Plaintiff and Respondent, (Ventura County)
v.
DANIEL CHRISTOPHER
ALVAREZ,
Defendant and Appellant.
Daniel Christopher Alvarez appeals from the judgment
after a jury convicted him of first degree murder (Pen. Code,1
§§ 187, subd. (a), 189, subd. (a)) and attempted second degree
robbery (§§ 664/211, 212.5, subd. (c)). The jury also found true
allegations that Alvarez committed murder during an attempted
robbery (§ 190.2, subd. (a)(17)(A)) and that he personally and
intentionally discharged a firearm causing death while
committing his crimes (§ 12022.53, subd. (d)). The trial court
1 Unlabeled statutory references are to the Penal Code.
sentenced him to life in state prison without the possibility of
parole (LWOP) on the murder and a consecutive 25 years to life
on the firearm enhancement. The court imposed and stayed a
three-year (upper term) sentence on the attempted robbery plus
25 years to life on the firearm enhancement.
As to his convictions, Alvarez contends: (1) his murder
conviction must be vacated because the trial court erroneously
modified CALCRIM No. 521, (2) his attempted robbery conviction
and the jury’s true finding on the attempted robbery special
circumstance allegation must be vacated due to insufficient
evidence of his larcenous intent, (3) the special circumstance
finding must be vacated due to insufficient evidence that the
attempted robbery was not merely incidental to the murder, and
(4) the finding must be vacated due to instructional error. As to
his sentence, Alvarez contends: (5) his ineligibility for a youth
offender parole hearing violates equal protection, and (6) the case
must be remanded for resentencing pursuant to Assembly Bill
No. 518 (2021-2022 Reg. Sess.), Senate Bill No. 567 (2021-2022
Reg. Sess.), and People v. Tirado (2022) 12 Cal.5th 688 (Tirado).
We affirm.
FACTUAL AND PROCEDURAL HISTORY
In November 2011, Alvarez and J.G. decided to purchase
methamphetamine. Through P.R. they arranged to buy some
from Ju.R. P.R. met with Ju.R. and paid around $230 for what
was purportedly 3.5 grams of methamphetamine. Alvarez and
J.G. subsequently discovered that the substance was worthless
“salt” and decided that they had to “do something about it.”
Alvarez said that he knew Ju.R. and vowed to kill him.
In June 2012, Alvarez (then 19 years old) and Justin
DeSantiago went to get tattooed by Alvarez’s uncle. He was
2
busy, however, so Alvarez said that he and DeSantiago would
return that evening.
Alvarez returned around 9:00 p.m. His aunt felt a hard
object in his waistband when she hugged him.
R.M., Jo.R., and J.T. arrived at Alvarez’s uncle’s garage
that same evening. Alvarez, DeSantiago, and A.S. were already
there.
Around 10:00 p.m., A.S. heard an argument outside the
garage. He went outside and saw Alvarez pointing a gun at Jo.R.
DeSantiago was with him. Jo.R. said, “Go ahead. Go ahead. If
you are going to kill me, kill me.” Alvarez replied that Jo.R. had
10 seconds to give him $180 or he would start shooting. A few
seconds later, Alvarez fired a single gunshot. R.M. heard it and
ran outside with J.T. They saw Jo.R. lying on the ground and
two people running from the scene.
The next day, Alvarez told a friend, “Man, fool, I just fucked
some shit up. You don’t even know, dog.” He also said, “I just did
some shit, fool, in the south on this fucking lame that owed me
money and woo, woo, woo, I fucked this fool up.” Alvarez said the
shooting was related to a “ball of shit.”
In late July or early August, J.G. asked Alvarez if he “took
care of it.” Alvarez replied that he “heard about [the killing].”
Alvarez said that he and DeSantiago were in a garage when he
saw “the fool that burned us.” A few minutes later Alvarez
confronted the man in an alley: “What’s up now, pussy?
[¶] . . . [¶] Shut the fuck up and empty out your pockets. I’m
going to give you 10 seconds.” He then counted to four and shot
the man.
Alvarez admitted to J.G. that he shot the “wrong guy,”
Jo.R. instead of Ju.R. He said that he buried the gun he used to
3
shoot Jo.R. in Thousand Oaks. When J.G. asked if he could have
the gun, Alvarez retorted, “Are you stupid? It has a body on it.”
J.G. said he did not care because he had an alibi: He was in jail at
the time of the shooting. Alvarez replied, “Still, if you get busted
with it, you have a murder weapon.”
The following month, Alvarez brought a loaded firearm to
J.G.’s garage. He said he wanted to exchange it for a weapon
that did not “have a body on it.”
DISCUSSION
CALCRIM No. 521
Alvarez first contends his murder conviction should be
vacated because the trial court erroneously modified CALCRIM
No. 521 by telling jurors that prosecutors did not need to show
that he “maturely and meaningfully reflected [on] the gravity of
his act” to prove that he committed deliberate, premeditated
murder. As he concedes in his reply brief, however, our Supreme
Court has rejected this argument. (See People v. Ramirez (2021)
10 Cal.5th 983, 1000-1006.) We thus reject Alvarez’s contention.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
Larcenous intent
Alvarez next contends his attempted robbery conviction
and the jury’s true finding on the attempted robbery special
circumstance allegation should be vacated because the only
evidence of his larcenous intent was his claim of right to the
money he was owed after being swindled in a methamphetamine
transaction. We disagree.
Larcenous intent—the intent to steal—is a required
element of attempted robbery. (People v. Alvarez (1996) 14
Cal.4th 155, 224.) “[A] claim-of-right defense can negate [this]
4
element.” (People v. Tufunga (1999) 21 Cal.4th 935, 950.) The
defense applies if a defendant seeks to regain property over
which they possess a good faith belief of ownership or title.
(Ibid.) But it does not apply “where the claimed right to the
property is rooted in a ‘notoriously illegal’ transaction.” (People v.
Barnett (1998) 17 Cal.4th 1044, 1144.)
Here, Alvarez attempted to recoup money after he was
allegedly cheated out of 3.5 grams of methamphetamine. His
claimed right to the money was thus rooted in a notoriously
illegal transaction. A claim-of-right defense does not apply in
such situations. (People v. Johnson (1991) 233 Cal.App.3d 425,
457-458.) This is true even though Alvarez received “salt”
instead of methamphetamine. (See Health & Saf. Code, § 11355
[criminalizing the sale of substances falsely represented to be
illicit drugs]; cf. People v. Siu (1954) 126 Cal.App.2d 41, 43-44
[defendant guilty of attempted possession of a controlled
substance even though substance was talcum powder].) His first
sufficiency-of-the-evidence challenge accordingly fails.
Attempted robbery as “merely incidental to” murder
Alvarez next contends the jury’s attempted robbery special
circumstance finding should be vacated due to insufficient
evidence that the attempted robbery of Jo.R. was more than
incidental to his murder. We again disagree.
An attempted robbery special circumstance applies if a
defendant commits murder while attempting to commit robbery.
(§ 190.2, subd. (a)(17)(A).) To prove this, prosecutors must show
that “the defendant formed the intent to steal before or while
killing the victim.” (People v. Lindberg (2008) 45 Cal.4th 1, 28
(Lindberg).) This requires “ ‘show[ing] that the defendant had an
independent purpose for the commission of the’ ” robbery—that
5
is, that the “ ‘commission of the [attempted robbery] was not
merely incidental to an intended murder.’ [Citations.]” (Id. at pp.
27-28, italics added.) If the evidence instead shows that the
defendant had “the sole purpose of killing” the victim, however,
the special circumstance does not apply. (People v. Riccardi
(2012) 54 Cal.4th 758, 836-837, abrogated on another point by
People v. Rangel (2016) 62 Cal.4th 1192, 1215-1216.)
To determine whether the jury correctly determined that
the special circumstance applies here, “ ‘we review the whole
record in the light most favorable to the judgment to determine
whether it discloses substantial evidence—that is, evidence that
is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find’ ” its allegation true beyond a
reasonable doubt. (People v. Cravens (2012) 53 Cal.4th 500, 507.)
“ ‘The standard of review is the same in cases in which
[prosecutors] rely mainly on circumstantial evidence.’ ” (Ibid.)
“ ‘ “Although it is the duty of the jury to [reject an allegation] if it
finds [the] . . . evidence . . . susceptible of two interpretations, one
of which suggests guilt and the other innocence [citations], it is
the jury, not the appellate court [that] must be convinced . . .
beyond a reasonable doubt.” ’ ” (Id. at pp. 507-508.) “ ‘ “ ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant
a reversal of the judgment.” ’ ” ’ ” (Id. at p. 508.) “The [finding]
shall stand ‘unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support” ’ ” it. (Ibid.)
Substantial evidence supports the jury’s finding that the
attempted robbery of Jo.R. was not merely incidental to his
murder. After discovering that he had been cheated in a drug
6
deal, Alvarez vowed to “do something about it.” Several months
later A.S. heard Alvarez threaten to shoot Jo.R. if he did not
remit $180. Alvarez later told J.G. that he had given Jo.R. “10
seconds” to “[s]hut the fuck up and empty out [his] pockets.” He
also bragged that he “took care” of the “fool that burned us.”
From this evidence, it can be inferred that Alvarez had an intent
to steal separate from his intent to kill. (See, e.g., People v.
Banks (2014) 59 Cal.4th 1113, 1157 [upholding attempted
robbery special circumstance where defendant shot victim
because victim refused to give him money]; People v. Sandoval
(1994) 30 Cal.App.4th 1288, 1296, 1299-1300 [attempted robbery
not merely incidental to attempted murder where defendant shot
victim after he refused to hand over money].)
Alvarez counters that he did not wait for Jo.R. to comply
with his demand for money, which shows that he had only the
intent to kill. But the evidence showed that Alvarez counted at
least to four before he shot Jo.R., which the jury interpreted as
showing that he also harbored the intent to steal. It is not the
province of this court to substitute one interpretation of the
evidence for the trier of fact’s.
Alvarez also argues that he formed the intent to kill
immediately after the bad drug deal, months before he formed
any intent to steal from Jo.R. This argument confuses the
temporal requirements of the special circumstance’s applicability.
The circumstance does not require a defendant to form the intent
to steal before they form the intent to kill, as Alvarez asserts, but
instead that they form the intent to steal “before or while killing.”
(Lindberg, supra, 45 Cal.4th at p. 28, italics added.) Substantial
evidence supports the jury’s determination that he did.
7
Instructions on the special circumstance allegation
Alternatively, Alvarez asserts the attempted robbery
special circumstance finding should be vacated because the trial
court’s instructions excused jurors from finding that the
attempted robbery was merely incidental to the murder. But
Alvarez did not object to the instructions during the proceedings
below. His assertion is forfeited. (People v. Lee (2011) 51 Cal.4th
620, 638.)
It is also meritless. “We independently review whether the
trial court accurately instructed the jury” on the attempted
robbery special circumstance allegation. (People v. Martinez
(2019) 34 Cal.App.5th 721, 728.) “We review the allegedly
erroneous instruction in the context of the evidence presented at
trial” and “the instructions as a whole [citation], with the
assumption that jurors are ‘capable of understanding and
correlating’ all . . . the instructions given [citation].” (Ibid.) “We
give the instructions a reasonable, rather than technical,
meaning [citation], and interpret them to support the judgment if
possible [citation].” (Ibid.) “We also consider the arguments of
counsel to assess the instructions’ impacts on the jury.” (Ibid.)
“Our duty is to determine ‘whether there is a reasonable
likelihood that the jury misunderstood and misapplied the
allegedly erroneous [special circumstance] instruction.’ ” (Ibid.,
alterations omitted.)
There was no such reasonable likelihood here. The trial
court instructed jurors pursuant to CALCRIM No. 730, which
told them that to find the attempted robbery special circumstance
allegation true they had to conclude that prosecutors proved,
beyond a reasonable doubt, that Alvarez: (1) “attempted to
commit a robbery,” (2) “intended to commit a robbery,” and (3)
8
“did an act that caused the death of another person.” The
instruction continued:
“To decide whether [Alvarez] attempted to commit
robbery please refer to the separate instructions . . .
on that crime. You must apply those instructions
when you decide whether [prosecutors] have proved
this special circumstance.
“[Alvarez] must have intended to commit the felony of
robbery before or at the time of the act causing
[Jo.R.’s] death.
“In addition, in order for this special circumstance to
be true, [prosecutors] must prove that [Alvarez]
intended to commit robbery independent of the
killing. If you find that [Alvarez] only intended to
commit murder and the commission of robbery was
merely part of or incidental to the commission of that
murder, then the special circumstance has not been
proved.” (Italics added.)
To Alvarez, this instruction excused jurors from finding that the
attempted robbery was more than incidental to the murder in
order to find the special circumstance true.
While the last sentence of the instruction, considered alone,
did misstate that the jury was required to find that Alvarez’s
commission of attempted robbery was more than incidental to the
murder, the error was harmless beyond a reasonable doubt. (Cf.
People v. Prieto (2003) 30 Cal.4th 226, 256-257 (Prieto)
[instruction that omits element of special circumstance subject to
review under Chapman v. California (1967) 386 U.S. 18].) The
complete instruction referred to attempted robbery several times.
9
It referred jurors to separate instructions on attempted robbery
and told them to apply those instructions when deciding whether
the special circumstance had been proven, a point reinforced by
the trial court’s admonishment to “[p]ay careful attention to all of
[its] instructions and consider them together.”
Prosecutors’ closing arguments similarly reinforced the
correct application of the law:
“There is a special circumstance alleged in this case.
And that is murder in the commission of a robbery.
So there has to be an attempted—[Alvarez] had to
have attempted to commit robbery, intended to commit
robbery, did an act that caused death in the
commission of that robbery, and must have intended
to rob before killing, must have intended to rob
independent of the killing. Basically, there needs to
be a dual intent.” (Italics added.)
They later referred to Alvarez’s act of “holding a gun out
and demanding that the guy turn over money or property”:
“[T]hat is an attempted robbery. He did not complete
the robbery because [Jo.R.] only had three bucks on
him, but the attempt is all you need. So he attempted
to rob, and in the midst of that attempt, he decided to
kill. So we have fulfilled the element of the special
circumstance.” (Italics added.)
Additionally, the verdict form shows that jurors found true
the allegation that Jo.R.’s murder “was committed while
[Alvarez] was engaged in the commission and attempted
commission of robbery.” (Italics added.) They also convicted
Alvarez of attempted robbery, the only other charge in the
10
indictment. Considered together, the instructions as a whole
alongside the arguments of counsel and the verdict forms render
any error in the trial court’s modified version of CALCRIM No.
730 harmless beyond a reasonable doubt. (Prieto, supra, 30
Cal.4th at p. 258; see, e.g., People v. Majors (1998) 18 Cal.4th
385, 410 [instructional error harmless where closing arguments
correctly state law and verdict forms reflect necessary findings];
People v. Garcia (2022) 76 Cal.App.5th 887, 894 [error harmless
where other instructions and closing arguments correctly state
law].)
Youth offender parole hearing
Next, Alvarez contends his ineligibility for a youth offender
parole hearing violates equal protection. We disagree once again.
In 2013, the Legislature added section 3051 to the Penal
Code, which made parole hearings available for juveniles who
committed offenses before they were 18 years old. (Sen. Bill No.
260 (2013-2014 Reg. Sess.); Stats. 2013, ch. 312, § 4.) The
Legislature has since expanded the availability of youth offender
parole hearings to those who committed their offenses prior to
age 25. (Sen. Bill. No. 394 (2017-2018 Reg. Sess.); Stats. 2017,
ch. 684, § 1.5.) These hearings are available at various intervals
depending on the length of the offender’s sentence and the age at
which they committed their offense. (See § 3051, subd. (b).)
“A person who was convicted of a controlling offense that
was committed before [they] had attained 18 years of age and for
which the sentence is [LWOP] shall be eligible for release on
parole at a youth offender parole hearing during [their] 25th year
of incarceration.” (§ 3051, subd. (b)(4).) But a person who “is
sentenced to [LWOP] for a controlling offense that was committed
after [they] had attained 18 years of age” is not eligible for such a
11
hearing. (Id., subd. (h), italics added.) To Alvarez, this
distinction amounts to an equal protection violation.2
Alvarez is mistaken. When evaluating an equal protection
challenge, we first “ask whether the state adopted a classification
affecting two or more groups that are similarly situated in an
unequal manner.” (People v. Chatman (2018) 4 Cal.5th 277, 289.)
We then “consider whether the challenged classification . . . bears
a rational relationship to a legitimate state purpose.” (Ibid.) “A
classification in a statute is presumed rational until the
challenger shows that no rational basis for the unequal treatment
is reasonably conceivable.” (Ibid.)
Here, even if we assume that young adults who commit
special circumstance murder, like Alvarez, are similarly situated
to juveniles who commit special circumstance murder, we would
find no equal protection problem because “[t]he Legislature had a
rational basis to distinguish between offenders . . . based on their
age.” (People v. Sands (2021) 70 Cal.App.5th 193, 204.) For
juvenile offenders, an LWOP sentence “may violate the Eighth
Amendment.” (Ibid.) “But the same sentence does not violate the
Eighth Amendment when imposed on an adult, even an adult
under the age of 26.” (Ibid.) “We agree with the other courts
[that have confronted this issue] that the Legislature could
2 In his reply brief, Alvarez attempts to reframe his
challenge, asserting that excluding a 19-year-old murderer
sentenced to LWOP from a youth offender parole hearing but
granting such a hearing to a 19-year-old murderer sentenced to a
parole-eligible indeterminate term violates equal protection. (See
People v. Hardin (2022) 84 Cal.App.5th 273, 288-291 (Hardin),
review granted Jan. 11, 2023, S277487.) We do not consider
assertions raised for the first time in reply briefs. (People v.
Silveria and Travis (2020) 10 Cal.5th 195, 255.)
12
rationally decide to remedy unconstitutional sentences but go no
further.”3 (Ibid.; see, e.g., Hardin, supra, 84 Cal.App.5th at pp.
285-286, review granted; People v. Morales (2021) 67 Cal.App.5th
326, 347; People v. Jackson (2021) 61 Cal.App.5th 189, 196-198;
People v. Acosta (2021) 60 Cal.App.5th 769, 779-781.)
Other sentencing issues
The trial court sentenced Alvarez in January 2019. At the
sentencing hearing the court said that the law was “very clear
about what [it] need[ed] to do” and that it did not “feel bad” for
Alvarez because he “deserve[d] what[] [was] going to happen to
him.” On count 1 it imposed an LWOP sentence on the murder
plus a consecutive 25 years to life on the attached firearm
enhancement. On count 2 it imposed and stayed an upper-term
sentence of three years on the attempted robbery plus 25 years to
life on the attached firearm enhancement. The court said that it
chose the upper term “because the crime . . . involve[d] planning
and sophistication and . . . incredible violence.” It cited no
circumstances in mitigation.
1. Assembly Bill No. 518
Regarding this sentence, Alvarez first contends the case
should be remanded for resentencing pursuant to Assembly Bill
No. 518 (2021-2022 Reg. Sess.). We disagree.
“Section 654 precludes multiple punishments for a single
act or indivisible course of conduct.” (People v. Hester (2000) 22
3 We also agree with our scores of colleagues who have
recognized that this conclusion may be in tension with recent
Eighth Amendment jurisprudence, and join their call to the
Legislature to consider “revisit[ing] where it has drawn the line
[in] section 3051, subdivision (h).” (In re Murray (2021) 68
Cal.App.5th 456, 464-465.)
13
Cal.4th 290, 294.) When the trial court sentenced Alvarez, a
single act that was punishable in different ways had to be
punished under the law that provided for the longest term of
imprisonment. (Former § 654, subd. (a).) Effective January 1,
2022, Assembly Bill No. 518 amended section 654 such that a
defendant is no longer required to be punished under the
provision providing for the longest term. (See Stats. 2021, ch.
441, § 1.) Instead, a court now has the discretion to impose
punishment under any applicable provision. (§ 654, subd. (a).)
Alvarez contends, and the Attorney General concedes, that
Assembly Bill No. 518 applies retroactively to cases that are not
yet final on appeal. We agree. (People v. Mani (2022) 74
Cal.App.5th 343, 379.) But that does not mean that this case
must be remanded for the trial court to consider whether to stay
the sentence on count 1 instead of count 2, as he asserts.
The jury found true the special circumstance allegation
that Alvarez committed murder during an attempted robbery.
That finding cannot be stricken. (§ 1385.1.) And it mandates one
of two possible sentences: death or LWOP. (§ 190.2, subd. (a).)
But staying the sentence on count 1 and ordering Alvarez to
serve the sentence imposed on count 2 instead would result in a
sentence other than death or LWOP—in violation of section
190.2. It would also have the same “practical” effect as striking
the special circumstance finding—in violation of section 1385.1.
(People v. Garcia (2022) 83 Cal.App.5th 240, 257-258.)
Resentencing pursuant to Assembly Bill No. 518 is thus not
permitted. (Garcia, at p. 243.)
2. Senate Bill No. 567
Alvarez next contends the trial court erred by imposing the
upper term on his attempted robbery conviction without
14
complying with the provisions of Senate Bill No. 567 (2021-2022
Reg. Sess.). But even if Senate Bill No. 567 applies here, it would
have “ ‘ “no practical effect” ’ ” on Alvarez’s total sentence.
(People v. Lamoureux (2020) 57 Cal.App.5th 136, 153.) Because
we reject all the challenges to his murder conviction and
sentence, the stay on the sentence imposed on his attempted
robbery conviction remains in effect. (People v. Rojas (2015) 237
Cal.App.4th 1298, 1309.) Any modification of that sentence
would thus have no impact. The contention is moot.
(Lamoureaux, at p. 153.)
3. People v. Tirado
Finally, Alvarez contends the case should be remanded for
the trial court to exercise its discretion to impose a lesser firearm
enhancement. We disagree once again.
Section 12022.53 sets out a graduated punishment scheme
for a defendant who uses a firearm during the commission of an
enumerated felony: a 10-year sentence enhancement for the
personal use of a firearm (id., subd. (b)), a 20-year enhancement
for the personal and intentional discharge of a firearm (id., subd.
(c)), and a 25-year-to-life enhancement for the personal and
intentional discharge of a firearm causing great bodily injury or
death (id., subd. (d)). Since 2018 a trial court has had the
discretion to strike or dismiss an enhancement imposed pursuant
to section 12022.53. (Id., subd. (h); see Sen. Bill. No. 620 (2017-
2018 Reg. Sess.); Stats. 2017, ch. 682, § 2.) And as our Supreme
Court recently clarified, if the court chooses to exercise that
discretion it can then impose a lesser enhancement in lieu of the
one stricken. (Tirado, supra, 12 Cal.5th at p. 700.)
Tirado applies retroactively to Alvarez’s case because it is
not yet final on appeal. (See Burris v. Superior Court (2005) 34
15
Cal.4th 1012, 1023 [Supreme Court decisions that resolve splits
in the Court of Appeal apply retroactively].) But a remand for
resentencing is not required because the record “clearly
indicate[s]” that the trial court would not have imposed a lesser
firearm enhancement had Tirado been decided prior to
sentencing. (People v. McDaniels (2018) 22 Cal.App.5th 420,
425.)
At the sentencing hearing the trial court said that it did not
“feel bad” for Alvarez and that he “deserve[d] what[] [was] going
to happen to him.” It then imposed the maximum sentence
possible—despite having the ability to impose a low or middle
term on the attempted robbery and the ability to strike one or
both firearm enhancements. The court also noted that Alvarez’s
crimes involved “incredible violence” and that he had failed to
identify any factors in support of a lesser sentence. A Tirado
remand would be futile.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J. YEGAN, J.
16
Ryan J. Wright, Judge
Superior Court County of Ventura
______________________________
Sylvia W. Beckham, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.