People v. Baudoin

Filed 12/6/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B317130
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA479343)
v.
TERRY CHRISTOPHER BAUDOIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard S. Kemalyan, Judge. Reversed.
Jolene Larimore, 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, Senior
Assistant Attorney General, Steven D. Matthews and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________
Defendant Terry Christopher Baudoin appeals a restitution
order imposed in connection with his conviction for battery with
serious bodily injury. The trial court ordered defendant to pay
restitution to the victim, L.W.,1 including for various expenses
she incurred in relocating away from her home where the assault
took place. Penal Code2 section 1202.4, subdivision (f)(3)(I)
(section 1202.4(f)(3)(I)) requires a trial court to include
“[e]xpenses incurred by an adult victim in relocating away from
the defendant” in a direct restitution award, but only if the
expenses have been “verified by law enforcement to be necessary
for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being
of the victim.” Defendant argues the restitution order here
violates section 1202.4(f)(3)(I) because there was no verification
by law enforcement or a mental health treatment provider
supporting the necessity of L.W.’s relocation costs. We agree, and
reverse and remand for further proceedings, including affording
the People an opportunity to provide the required verification.
1 Following the guidance of California Rules of Court, rule
8.90(b)(4), we refer to the victim by her initials only.
2 Allfurther statutory references are to the Penal Code
unless otherwise noted.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Assault on L.W.3
On March 6, 2019, L.W. had an argument with her
husband at his workplace. Defendant, who was a good friend of
L.W.’s husband, was present during the argument.
After the argument, L.W. returned to the home she shared
with her husband and her two children, who were four and six
years old. Arriving home, the doorbell rang. When she opened
the door, defendant’s sister, Tiana Baudoin (Tiana),4 rushed at
L.W. and began beating her about the face and head. Repeatedly
struck, L.W. fell to the floor. Defendant, who was present with
his sister, directed Tiana to let L.W. stand up, but Tiana
continued beating her. Defendant then joined in. He “sucker
punched” L.W. in the face. She fell on her back and lost
consciousness.
As a result of the beating, L.W. was taken by ambulance to
the hospital, where she remained for approximately 24 hours.
She suffered fractures to both eye sockets, and required
approximately 14 stitches under one of her eyes.
B. Defendant Pleads Nolo Contendere and Is Sentenced
to Prison
By an amended information, defendant was charged with
battery with serious bodily injury (§ 243, subd. (d)), assault by
3 Because this matter is on appeal from a negotiated plea,
the facts of the case are taken from the preliminary hearing and
the restitution hearings, which form the basis for the appeal.
4 Because Tiana shares the same last name as defendant,
we refer to her by her first name for purposes of clarity and not
out of any disrespect.
3
means of force likely to produce great bodily injury (§ 245, subd.
(a)(4)), and first degree burglary (§ 459). Defendant entered a
plea of nolo contendere to battery with serious bodily injury and
admitted inflicting great bodily injury on the victim.5 He also
admitted a probation violation from a prior case. The court
sentenced defendant to an upper term of four years in state
prison to be served concurrently with the term for violating
probation. The court dismissed the remaining counts, and put
the matter over for a further hearing regarding victim
restitution.
C. Restitution Overview
Before we discuss the restitution related proceedings in the
trial court, an overview of certain restitution provisions
applicable to this case is helpful.
“In 1982, California voters passed Proposition 8, also
known as The Victims’ Bill of Rights. . . . [Citations.] Proposition
8 established the right of crime victims to receive restitution
directly ‘from the persons convicted of the crimes for losses they
suffer.’ (Cal. Const., art. I, § 28, subd. (b).) The initiative added
article I, section 28, subdivision (b) to the California
Constitution . . . .” (People v. Giordano (2007) 42 Cal.4th 644, 652
(Giordano).)
Under this constitutional provision, “[r]estitution shall be
ordered . . . in every case . . . in which a crime victim suffers a
loss.” (Cal. Const., art. I, § 28, subd. (b)(13)(B).) “California
Constitution, article I, section 28, subdivision (b), which is not
5 Tiana was also charged, and entered a plea of nolo
contendere to one count of assault by means of force likely to
produce great bodily injury.
4
self-executing, directed the Legislature to adopt implementing
legislation. [Citations.]” (Giordano, supra, 42 Cal.4th at p. 652.)
The Legislature enacted section 1202.4 to “implement[ ] the
broad mandate of California Constitution, article I, section 28,
subdivision (b).” (Giordano, supra, 42 Cal.4th at pp. 656.)
Subdivision (f) of section 1202.4 provides, with exceptions not
relevant here, that “in every case in which a victim has suffered
economic loss as a result of the defendant’s conduct, the court
shall require that the defendant make restitution to the victim or
victims in an amount established by court order, based on the
amount of loss claimed by the victim or victims or any other
showing to the court.” (§ 1202.4, subd. (f).) It further provides
that “[t]he court shall order full restitution.” (Ibid.)
Subdivision (f)(1) of section 1202.4 provides that a
“defendant has the right to a hearing before a judge to dispute
the determination of the amount of restitution.” (§ 1202.4, subd.
(f)(1).) “The standard of proof at a restitution hearing is
preponderance of the evidence, not reasonable doubt.” (People v.
Holmberg (2011) 195 Cal.App.4th 1310, 1319.)
Subdivision (f)(3) of section 1202.4 provides, in relevant
part, that the restitution order “shall be of a dollar amount that
is sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the
defendant’s criminal conduct, including, but not limited to, all of
the following . . . .” (§ 1202.4, subd. (f)(3).) What follows are 12
subdivisions, (f)(3)(A) through (f)(3)(L), which address specific
types of expenses. Among these subdivisions is (f)(3)(I), which
addresses “[e]xpenses incurred by an adult victim in relocating
away from the defendant.” Section 1202.4(f)(3)(I) requires that
“[e]xpenses incurred pursuant to this section shall be verified by
5
law enforcement to be necessary for the personal safety of the
victim or by a mental health treatment provider to be necessary
for the emotional well-being of the victim.”
D. The Restitution Hearings and Resulting Order
On November 9, 2021, the trial court held a hearing
pursuant to section 1202.4, subdivision (f)(1) to consider
restitution payable to L.W. by both defendant and Tiana.
L.W. testified at the hearing as follows. After the assault,
she was taken to the hospital by ambulance, and she later
received a bill in the amount of $1,642, which was still unpaid.
After she was released from the hospital, she did not return to
her home because defendant and Tiana knew where she lived,
and she was afraid of them assaulting her again or something
else happening to her. L.W. further testified, “My husband—
when the incident happened, I called him and told him what
happened. He never answered. He never said come home. He
never said—he never checked on me and the kids at all. It’s as if
he knew that it happened, and he never reached out to say,
‘Okay. Come back home. It’s okay. You know, it was a mistake.’
He never reached out. So basically, I got beat up by his friends
and put out my house with my two young kids.” Defendant and
Tiana were gang-affiliated and members of the gang would
gather at the residence where L.W. lived with her husband.
Faced with this situation, L.W. took her two children to the
one-bedroom apartment of her father, where she was able to stay
for a night. After that, she moved from place to place, including
different motels and friends’ residences, because she was not able
to afford a more permanent residence. L.W. stayed in motels for
about six to eight months, and she provided receipts totaling
$8,055.56; she was missing some receipts, so the actual expense
6
was higher. L.W. shared the motel rooms with a relative and
each paid half of the expenses. In February 2020, L.W. was able
to get into an apartment for $1,800 per month in rent; L.W. also
shared the apartment with the same relative, and they each paid
half of the rent. When L.W. had lived with her husband, she had
paid no rent, and she was not on the lease. L.W. and her relative
also had to pay a total of $3,600 for a security deposit and last
month’s rent; the relative paid the “majority of it” but L.W.
agreed to pay her back.
At the conclusion of L.W.’s testimony, the prosecutor
argued that L.W. should receive $1,642 for the ambulance charge,
$9,000 for L.W.’s share of the hotel expenses (calculated at $50
per day for 180 days), and $900 for L.W.’s share of the security
deposit, for a total of $11,542. Defense counsel pointed out that
L.W. admitted she had assumed, near the end of her period of
staying in motels, that she would be returning home, and counsel
argued that this admission showed L.W. did not fear returning
home and was not entitled to restitution of relocation expenses
under section 1202.4(f)(3)(I).
Defense counsel also argued there was no verification from
law enforcement that it was necessary for L.W. to move, and that
such evidence was required by section 1202.4(f)(3)(I). In making
this argument, counsel cited People v. Mearns (2002) 97
Cal.App.4th 493 (Mearns), which counsel contended held that a
verification by law enforcement was required to award relocation
expenses under section 1202.4(f)(3)(I). The prosecutor responded
the victim’s testimony alone was sufficient to award relocation
expenses, and no verification by law enforcement was required.
The trial court held a second hearing regarding restitution
on November 22, 2021. The court found defendant was gang
7
affiliated, was a friend of L.W.’s husband, and was often at the
home of L.W. and her husband. Because of these facts, L.W. did
not feel safe returning home after the attack and did not do so
because she was in fear for her life. She also did not return home
because she was unsure if her husband was involved in the
attack. Responding to defense counsel’s argument based on
Mearns, the court stated that it read Mearns to hold restitution
for relocation expenses was proper under the general
introductory provisions of section 1202.4, subdivision (f), in
addition to the more specific provisions of section 1202.4(f)(3)(I),
thus obviating any need for a verification. (See Mearns, supra, 97
Cal.App.4th at p. 503.)
At the conclusion of the hearing, the court ordered
defendant to pay restitution consisting of:
(1) $1,642 in ambulance expenses.
(2) Relocation expenses of 50 percent for six months of
motel expenses, limited because L.W. shared costs with her
relative. Because the relocation expense receipts submitted
to the court varied in amounts (some were in excess of $100
a day while others were for less) the court selected $100 a
day as the reasonable expense, and awarded L.W. 50
percent of the motel charges for 180 days, for a total of
$9,000.
(3) $900 for L.W.’s share of the first and last month’s rent
on a new apartment and $900 for her share of the security
deposit.
The total restitution awarded to L.W. was $12,442.
Defendant and Tiana were ordered jointly and severally liable for
the restitution.
8
On December 13, 2021, defendant filed a timely notice of
appeal.
DISCUSSION
Defendant contends the trial court’s order of restitution for
relocation expenses violated section 1202.4(f)(3)(I) because there
was no verification by law enforcement that those expenses were
necessary for the personal safety of the victim, or from a mental
health treatment provider that the expenses were necessary for
the emotional well-being of the victim.6 Relying on Mearns, the
People argue victim relocation costs can be awarded without
reference to section 1202.4(f)(3)(I) and its verification
requirement so long as those expenses constitute an economic
loss under the general language of the first sentence of section
1202.4, subdivision (f).
A. Standard of Review
“A victim’s restitution right is to be broadly and liberally
construed. [Citations.]” (Mearns, supra, 97 Cal.App.4th at
pp. 500-501.) We review a restitution order for abuse of
discretion. (Giordano, supra, 42 Cal.4th at p. 663; People v. Ortiz
(1997) 53 Cal.App.4th 791, 800.) The abuse of discretion
standard “ ‘asks in substance whether the ruling in question
“falls outside the bounds of reason” under the applicable law and
the relevant facts [citations].’ [(People v. Williams (1998) 17
Cal.4th 148, 162.)] Under this standard, while a trial court has
broad discretion to choose a method for calculating the amount of
restitution, it must employ a method that is rationally designed
6 Defendant does not dispute the portion of the restitution
order for $1,642 in ambulance expenses.
9
to determine the surviving victim’s economic loss.” (Giordano,
supra, at pp. 663-664.)
In reviewing restitution orders, we do not reweigh the
evidence or make credibility decisions. Our review is to
determine whether there is sufficient evidence to support the
inferences made by the trial court. (People v. Sy (2014) 223
Cal.App.4th 44, 63; People v. Baker (2005) 126 Cal.App.4th 463,
469.) “However, a restitution order ‘resting upon a
“ ‘demonstrable error of law’ ” constitutes an abuse of the court’s
discretion. [Citation.]’ [Citation.]” (People v. Millard (2009) 175
Cal.App.4th 7, 26; see People v. Williams (2010) 184 Cal.App.4th
142, 146 [“when the propriety of a restitution order turns on the
interpretation of a statute, a question of law is raised, which is
subject to de novo review on appeal”].)
B. Section 1202.4(f)(3)(I) Applies to the Trial Court’s
Restitution Order
By its own terms, section 1202.4(f)(3)(I)’s verification
requirement applies when an adult victim incurs expenses to
relocate away from a defendant. On appeal, defendant does not
contest that L.W. relocated to get away from him. L.W. testified
that she did not want to go back to her apartment where the
assault happened because defendant and Tania knew where she
lived, and she was still afraid of them. The trial court credited
this testimony, noting defendant was gang affiliated, was a friend
of L.W.’s husband, and was always at the home of L.W. and her
husband. Because of these facts, the trial court found L.W. did
not feel safe returning home after the attack and did not do so
because she was in fear for her life.
The People likewise do not contend the relocation was for
some reason other than to get away from defendant. Nor does
10
the record indicate any reason that L.W. would have incurred
relocation costs as a result of defendant’s conduct other than to
move away from defendant. To the extent L.W. also moved to get
away from her husband, the evidence showed the husband was a
friend of defendant and always let defendant into L.W.’s home,
the assault happened shortly after an argument with her
husband at which defendant was present, and her husband did
not speak to her after the assault. It was therefore
understandable why L.W. did not feel safe from defendant
staying in her current home and needed to relocate away from
defendant. Defendant knew where L.W. lived and she reasonably
feared her husband, who also lived there, would continue to
provide defendant access to the apartment and thus to L.W. if she
still resided there.
Given that there is no dispute the relocation costs at issue
were incurred by L.W. to move away from defendant, section
1202.4(f)(3)(I) and its verification requirement are squarely
applicable. The People rely on Mearns and its interpretation of
section 1202.4 to argue that, so long as relocation costs are
economic losses under the first sentence of section 1202.4,
subdivision (f), those costs can be awarded without reference to
section 1202.4(f)(3)(I). While an alternative holding in Mearns
suggests section 1202.4 can be so interpreted, we find such a
reading of the statutory language untenable.
To help frame the discussion in Mearns, we begin by
restating the pertinent statutory language. The first sentence in
section 1202.4, subdivision (f) states in relevant part that “in
every case in which a victim has suffered economic loss as a
result of the defendant’s conduct, the court shall require that the
defendant make restitution to the victim or victims in an amount
11
established by court order, based on the amount of loss claimed
by the victim or victims or any other showing to the court.”
Subdivision (f)(3) then states that the restitution order “shall
identify . . . each loss to which it pertains, and shall be of a dollar
amount that is sufficient to fully reimburse the victim or victims
for every determined economic loss incurred as the result of the
defendant’s criminal conduct, including, but not limited to” before
listing examples of types of covered losses in subdivisions (f)(3)(A)
through (f)(3)(L), including relocation costs in subdivision (f)(3)(I).
While subdivisions (f)(3)(A) through (f)(3)(L) of section
1202.4 list specific types of expenses that a court must include in
a restitution award if they were incurred as a result of the
defendant’s criminal conduct, the list is non-exclusive, as
demonstrated by the introductory phrase “including, but not
limited to” in subdivision (f)(3). (See People v. Henderson (2018)
20 Cal.App.5th 467, 471 [“Section 1202.4, subdivision (f)(3)
expressly states that the enumerated list . . . is a nonexclusive list
of examples”]; People v. Keichler (2005) 129 Cal.App.4th 1039,
1046 [“Because [§ 1202.4, subd. (f)(3)] uses the language
‘including, but not limited to’ these enumerated losses, a trial
court may compensate a victim for any economic loss which is
proved to be the direct result of the defendant’s criminal
behavior, even if not specifically enumerated in the statute”].)
Thus, even if a type of expense is not included in
subdivisions (f)(3)(A) through (f)(3)(L), if it is an “economic loss”
resulting from the defendant’s crime then it is proper to include it
in a restitution order. (Mearns, supra, 97 Cal.App.4th at p. 503;
see People v. Brooks (2018) 23 Cal.App.5th 932, 947; People v.
Henderson, supra, 20 Cal.App.5th at p. 470.) The authority to
impose restitution for categories of economic loss caused by a
12
defendant that are not listed as an example in the subparts of
section 1202.4, subdivision (f)(3), however, does not in our view
excuse compliance with any requirements applicable to an
example that is listed.
In Mearns, the defendant raped the victim in her mobile
home. After the rape, the victim sold her mobile home for
$13,000 and purchased a new one for $26,575. The victim
testified that she sold her mobile home because she wanted to
leave her residence as a result of the rape, and bought a similar
sized mobile home in a gated community for additional
protection. A law enforcement investigator submitted a letter in
connection with the restitution hearing stating the mobile home
that was sold was incapable of being secured from intruders
because of its shoddy construction, and that the victim was in
constant fear of being assaulted again. The trial court imposed
restitution of $13,575, representing the difference between the
sale price of the original mobile home and the purchase price of
the new mobile home. (Mearns, supra, 97 Cal.App.4th at p. 497.)
On appeal, the court found the award satisfied section
1202.4(f)(3)(I)’s requirements. There was a sufficient factual
basis showing the victim’s move involved relocating away from
the defendant because the defendant knew where the victim lived
and where her son attended school, and she was in constant fear
of being assaulted again. (Mearns, supra, 97 Cal.App.4th at
p. 502.) There was no dispute that the letter from law
enforcement complied with the verification requirement in
section 1202.4(f)(3)(I), as the letter explained why the relocation
expenses were necessary for the personal safety of the victim.
(Mearns, supra, at pp. 497, 502-503.) Finally, Mearns found the
trial court’s analysis of why the relocation expenses were
13
incurred as a result of the defendant’s conduct “rational, well
reasoned, based on factual evidence presented at the hearing,
and within its broad discretion.” (Id. at p. 502.)
We take no issue with that portion of Mearns’s analysis.
But the Mearns court then went on to hold, in the alternative,
that the court’s restitution order was also authorized under the
first sentence of section 1202.4, subdivision (f) regardless of the
specific wording in section 1202.4(f)(3)(I). In its view, “putting
aside the specific wording in section 1202.4, subdivision (f)(3)(I),
the trial court reasonably could have concluded that the
increased costs incurred in the move was an ‘economic loss’
within the general language of the first sentence of section
1202.4, subdivision (f). [The victim] moved in order to prevent
[the] defendant from finding her again and reduce the fears
engendered by the very mobilehome where she was sexually
assaulted at knife point. The trial court could reasonably
conclude that the enormous emotional trauma resulting from the
attack was such that [the victim] virtually had to move and this
was an ‘economic loss’ resulting from [the] defendant’s conduct
without relying on the more specific language in section
[1202.4(f)(3)(I)].” (Mearns, supra, 97 Cal.App.4th at p. 503.)
This alternative holding led the trial court here to conclude
that restitution for L.W.’s relocation expenses was proper under
the general provisions of section 1202.4, subdivision (f), which
obviated any need for a verification under the more specific
provisions of section 1202.4(f)(3)(I) even if L.W.’s moving costs
were incurred to relocate away from defendant. To the extent the
alternative holding in Mearns says this, we do not agree with it.
It is important to begin by noting that the alternative
holding in Mearns was made on the assumption that the victim
14
“did not move in order to relocate away from [the defendant].”
(Mearns, supra, 97 Cal.App.4th at p. 502, italics added.) Mearns
correctly states that if section 1202.4(f)(3)(I) is inapplicable
because the relocation was not to get away from the defendant,
restitution may still be authorized if the more general provisions
of subdivision (f) of section 1202.4 are met. Where the
alternative holding Mearns erred, in our view, is stating that
when a victim “moved in order to prevent [the] defendant from
finding her again,” victim relocation costs can be subject to “the
general language of the first sentence of section 1202.4,
subdivision (f)” without being subject to “the specific wording in
section [1202.4(f)(3)(I)].” (Mearns, supra, at p. 503.) A victim
moving to prevent the defendant from finding the victim again
and a victim moving to relocate away from the defendant are not
distinct; they are two ways of saying the same thing. Indeed,
elsewhere in Mearns the court acknowledged the equivalency,
concluding the facts showed the victim there relocated away from
the defendant because the defendant “knew where [the victim]
lived” and “[o]nce she moved, [the] defendant had no knowledge
of her whereabouts.” (Id. at pp. 502-503.)
Because relocating away from the defendant and relocating
to prevent a defendant from finding the victim again are two
ways of saying the same thing, section 1202.4(f)(3)(I) applies
regardless of which descriptor is used. To read the first sentence
of section 1202.4, subdivision (f) as permitting imposition of
moving related costs for relocating away from the defendant
(including to prevent the defendant from finding the victim
again) without giving force to the verification requirement set
forth in section 1202.4(f)(3)(I) renders section 1202.4(f)(3)(I)
surplusage and a nullity. Section 1202.4, like any statute, must
15
be construed as a whole. (Los Angeles County Metropolitan
Transportation Authority v. Alameda Produce Market, LLC
(2011) 52 Cal.4th 1100, 1106-1107.) “It is a maxim of statutory
interpretation that courts should give meaning to every word of a
statute and should avoid constructions that would render any
word or provision surplusage. [Citations.] ‘An interpretation
that renders statutory language a nullity is obviously to be
avoided.’ [Citation.]” (Tuolumne Jobs & Small Business Alliance
v. Superior Court (2014) 59 Cal.4th 1029, 1038-1039; see also
Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709,
715-716 [judicial construction that renders part of a statute
meaningless or inoperative is generally precluded].) Section
1202.4(f)(3)(I) is undoubtedly an example of expenses subject to
restitution, but when the facts fit the example set forth in section
1202.4(f)(3)(I) compliance with its terms is required. That did not
occur here, and the failure to comply with this statutory
requirement mandates reversal.
We wish to emphasize the limited nature of our holding
here today so as to not chill the pursuit of restitution where
appropriate. First, we do not hold that all potential relocation
costs are subject to section 1202.4(f)(3)(I) and its verification
requirement. If section 1202.4(f)(3)(I) is inapplicable because the
relocation was for reasons not covered by that provision,
restitution may still be authorized if the more general provisions
of subdivision (f) of section 1202.4 are met.
Second, as shown by Mearns itself, when moving expenses
are incurred to relocate away from a defendant, the verification
requirement serves simply to confirm the necessity of those
expenses and should not limit an order of restitution for any
expenses the court finds demonstrably necessary. Law
16
enforcement provided the required verification in Mearns, and
relocation costs were properly included in the restitution order
there as the requirements of section 1202.4(f)(3)(I) were met.
Given concerns with whether relocation (which often involves
considerable cost) is always necessary in every case to get away
from a defendant either for personal safety or for emotional well-
being, the Legislature imposed a requirement on law enforcement
and/or mental health treatment providers to verify the relocation
expenses sought. The verification requirement applies not only
to direct restitution payable by the defendant, but also to
requests for restitution from the California Victim Compensation
Board for relocation expenses. (See Gov. Code, § 13957, subd.
(a)(7)(A).) Requiring compliance with that statutory mandate
prevents abusive or improper requests (People v. Brooks, supra,
23 Cal.App.5th at p. 944), but it does not interfere with a
restitution order fully reimbursing a victim for every determined
economic loss incurred as a result of the defendant’s conduct.
C. Remand for Further Proceedings is Appropriate
Defendant argues without citation to authority that this
court should strike the relocation costs from the restitution
award without any further proceedings. The People argue we
should remand for a new restitution hearing as to the relocation
expenses. We agree that remand for a new restitution hearing
(including affording the People an opportunity to provide the
necessary verification) is appropriate. (See People v. Harvest
(2000) 84 Cal.App.4th 641, 650 [restitution award made at
resentencing does not implicate double jeopardy]; People v.
Thygesen (1999) 69 Cal.App.4th 988, 996 [remanding for
rehearing following reversal of restitution award].)
17
DISPOSITION
The order of restitution is reversed insofar as it included
relocation expenses, and the matter remanded for further
proceedings consistent with this opinion.
CERTIFIED FOR PUBLICATION
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
18