Salmon v. Salmon CA4/2

Filed 11/14/22 Salmon v. Salmon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MELISSA BETH SALMON,
Respondent, E075748
v. (Super.Ct.No. DVHE1906683)
STEPHEN SALMON, OPINION
Appellant.
APPEAL from the Superior Court of Riverside County. James T. Warren, Judge.
Affirmed.
Stephen Salmon, in pro. per.; Westover Law Group and Andrew L. Westover for
Appellant.
Steven S. Kondo for Respondent.
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I. INTRODUCTION
Stephen Salmon (Husband) and Melissa Beth Salmon (Wife) filed competing
requests for domestic violence restraining orders against each other pursuant to the
Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq.)1 The trial
court held a joint hearing on both petitions that included live witness testimony presented
over the course of multiple days. At the conclusion of the hearing, the trial court issued
an order granting Wife’s petition and denying Husband’s petition. Husband appeals from
this order.
On appeal, Husband does not challenge the sufficiency of the evidence to support
the trial court’s factual findings or to support the issuance of a DVPA restraining order in
favor of Wife. Instead, he challenges only the trial court’s denial of his petition, arguing
(1) the trial court misunderstood the scope of its discretion to the extent it believed
section 6305 constrained its authority to simultaneously grant both requests for protective
orders in this case; (2) even if section 6305 applies, the trial court abused its discretion by
choosing between two identified aggressors in order to grant relief to only one of them;
and (3) the trial court abused its discretion by failing to grant Husband’s request for
custody of the parties’ children.
We conclude that section 6305 does govern the parties’ competing requests for
protective orders; the statute expressly permits the trial court to weigh the acts of the
parties to determine if one should be considered the dominant aggressor before issuing a
1 Undesignated statutory references are to the Family Code.
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mutual restraining order; and the trial court did not abuse its discretion in denying
Husband’s custody request. As such, we affirm the order.
II. PROCEDURAL HISTORY
On October 30, 2019, Wife filed a petition seeking a domestic violence restraining
order against Husband. Wife alleged that on October 28, Husband had attempted to
physically discipline one of their children with a belt; Wife had attempted to intervene;
and Husband physically battered Wife as a result. Police eventually arrived at the scene
and arrested Husband for domestic violence.
On November 27, 2019, Husband filed his own petition seeking a domestic
violence restraining order against Wife. With respect to the October 28, 2019 incident,
Husband alleged that Wife had initiated the conflict, and he only struck Wife accidentally
when acting in self-defense. Husband also alleged that Wife had committed various acts
of physical abuse in the past, with the most recent act of abuse occurring in April 2019.
In addition to his request for a DVPA restraining order to protect himself, Husband also
requested the trial court make an order awarding him sole legal and physical custody of
the parties’ four minor children.
The trial court held a hearing on both petitions that included live witness
testimony presented over the course of multiple days. At the conclusion of the hearing,
the trial court granted Wife’s petition and denied Husband’s petition. In a written minute
order, the trial court made the following findings: (1) Husband was the primary
aggressor with respect to the October 28, 2019 incident; (2) Wife was the primary
aggressor with respect to the alleged April 2019 incident; (3) Wife had previously
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inflicted injuries to the parties’ minor children that would qualify for a presumption under
section 3044; (4) Husband was “grossly derelict” in permitting corporal punishment by
Wife against their children; and (5) Husband was “grossly negligent” for leaving loaded
firearms in the home accessible to the parties’ children.
Other than setting forth findings of fact, the written order did not explain the
reasons for the trial court’s decision. However, the trial court provided an oral
explanation of its reasons on the record at the hearing. The trial court explained that its
findings meant that both Husband and Wife had committed acts of domestic violence
within the meaning of section 3044; that while Wife had inflicted unnecessary and
inappropriate injuries to the children, Husband had also failed to protect the children from
this alleged abuse; and that the trial court believed Husband to be “the primary aggressor
in this case,” notwithstanding the fact that Wife had also committed acts of abuse in the
past.
III. DISCUSSION
A. General Legal Principles and Standard of Review
“Pursuant to the Domestic Violence Prevention Act (DVPA) (§ 6200 et seq.), a
court may issue a protective order to restrain any person for the purpose of preventing a
recurrence of domestic violence and ensuring a period of separation of the persons
involved.” (S.M. v. E.P. (2010) 184 Cal.App.4th 1249, 1264.) The trial court may issue
such an order “ ‘if the party seeking the order “shows, to the satisfaction of the court,
reasonable proof of a past act or acts of abuse.” ’ ” (K.L. v. R.H. (2021) 70 Cal.App.5th
965, 977 (K.L.).) A trial court is also empowered to make visitation or custod y orders in
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conjunction with a DVPA restraining order. (§ 6323 [custody orders authorized on ex
parte basis upon showing of immediate harm to child]; § 6340 [custody orders authorized
after notice and hearing].)
However, the statutory scheme also constrains the trial court’s ability to issue a
mutual protective order. Section 6305 provides that “the court shall not issue a mutual
order enjoining the parties from specific acts of abuse” unless it makes “detailed findings
of fact indicating that both parties acted as a primary aggressor and that neither party
acted primarily in self-defense.” (Id. at subd. (a).) “[I]n determining if both parties acted
primarily as aggressors, the court shall consider the provisions concerning dominant
aggressors set forth in [Penal Code section 836, subdivision (c)(3)].” (§ 6305, subd. (b).)
In turn, Penal Code section 836, subdivision (c)(3), explains that “[t]he dominant
aggressor is the person determined to be the most significant, rather than the first,
aggressor” and specifies various factors to consider in making such a determination,
including: “(A) the intent of the law to protect victims of domestic violence from
continuing abuse, (B) the threats creating fear of physical injury, (C) the history of
domestic violence between the persons involved, and (D) whether either person involved
acted in self-defense.” (Pen. Code, § 836, subd. (c)(3).)
“We review DVPA orders [citation] and custody and visitation orders [citation]
for abuse of discretion.” (K.L., supra, 70 Cal.App.5th at p. 979.) However, “[t]he abuse
of discretion standard is not a unified standard; the deference it calls for varies according
to the aspect of a trial court’s ruling under review.” (Haraguchi v. Superior Court (2008)
43 Cal.4th 706, 711.) Thus, “ ‘ “[t]he question of ‘whether a trial court applied the
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correct legal standard to an issue in exercising its discretion is a question of law [citation]
requiring de novo review.’ ” ’ ” (K.L., at p. 979; see In re Marriage of F.M. & M.M.
(2021) 65 Cal.App.5th 106, 116 [“ ‘The question of whether a trial court applied the
correct legal standard to an issue in exercising its discretion is a question of law [citation]
requiring de novo review.’ ”].) “[T]o the extent we are called upon to review the court’s
factual findings, we apply the substantial evidence standard of review.” (Curcio v. Pels
(2020) 47 Cal.App.5th 1, 12; see K.L., at p. 979.) Finally, with respect to the trial court’s
application of the law to the facts, “ ‘[a]n abuse of discretion occurs when the ruling
exceeds the bounds of reason.’ ” (Perez v. Torres-Hernandez (2016) 1 Cal.App.5th 389,
396; see In re Marriage of G. (2017) 11 Cal.App.5th 773, 780.)
In this appeal, Husband expressly concedes the evidence is sufficient to support
the trial court’s factual findings. Thus, the only questions presented involve whether the
trial court applied the correct legal standard, which we review de novo, and whether the
trial court’s application of the law to the undisputed facts exceeded the bounds of reason.
As we explain, we find no abuse of discretion on this record.
B. Section 6305 Governs the Granting of Separate Orders That Have the Effect of a
Mutual Protective Order
Husband’s primary contention on appeal is that section 6305 does not apply when
two competing petitions allege different incidents of domestic violence as the basis for
seeking a protective order under the DVPA. Husband believes that in such cases “each
petition for protection must be determined on its own merits and independent of the
other,” regardless of whether the petitions are heard separately or together. Thus,
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according to Husband, the trial court misunderstood the scope of its discretion to the
extent it believed section 6305 constrained its ability to grant both Husband’s and Wife’s
competing petitions in this case.
We acknowledge that the limited published decisions addressing this point are
divided. In Conness v. Satram (2004) 122 Cal.App.4th 197 (Conness), the First
Appellate District concluded two orders entered close in time to each other, but following
separate hearings on different days, did not fall under the definition of a mutual order for
purposes of section 6305, despite the fact the orders together resulted in a restraining
order in favor of each party to the dispute. (Id. at pp. 202-205.) However, more recently,
in Melissa G. v. Raymond M. (2018) 27 Cal.App.5th 360 (Melissa G.), the Second
Appellate District held that, “[a]s used in section 6305, the phrase ‘mutual order’ may
refer to a single order restraining two opposing parties . . . or two separate orders which
together accomplish the same result as a single order.” (Id. at p. 368.) Husband contends
that Melissa G. was wrongly decided. For the reasons we set forth below, we disagree.
First, it is a codified maxim of jurisprudence that “[t]he law respects form less
than substance.” (Civ. Code, § 3528.) Thus, “[o]n appeal, the substance and effect of the
order controls, not its label.” (Brown v. Wells Fargo Bank, NA (2012) 204 Cal.App.4th
1353, 1356; Gaines v. Fidelity National Title Ins. Co. (2016) 62 Cal.4th 1081, 1092-1094
[“The label the trial court uses is not dispositive of the inquiry,” and the reviewing court
will look to the functional nature of an order to determine whether a statute applies].) In
our view, this consideration strongly weighs in favor of the interpretation adopted in
Melissa G. Two separate orders that collectively accomplish the same result as a single
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mutual restraining order are the functional equivalent of a mutual restraining order. To
declare that two separate orders cannot constitute a “mutual restraining order” under
these circumstances would require us to ignore their substantive, legal effect on the rights
of the parties in favor of their form or label.
Second, “ ‘ “[t]he fundamental purpose of statutory construction is to ascertain the
intent of the lawmakers so as to effectuate the purpose of the law,” ’ ” and “ ‘ “ ‘ “we
‘ “select the construction that comports most closely with the apparent intent of the
Legislature, with a view to promoting rather than defeating the general purpose of the
statute . . . .” ’ ” ’ ” ’ ” (Carrasco v. State Personnel Bd. (2021) 70 Cal.App.5th 117, 139;
Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645.) It is undisputed
that one of the primary purposes of section 6305 is to “hel[p] ensure that a mutual order
is the product of the careful evaluation of a thorough record and not simply the result of
the moving party yielding to the other party’s importunities or the court deciding that a
mutual order is an expedient response to joint claims of abuse.” (Conness, supra,
122 Cal.App.4th 197 at p. 204; Melissa G., supra, 27 Cal.App.5th at p. 369.) In our
view, the interpretation adopted in Melissa G. most effectively promotes this legislative
purpose. It would ensure that the trial court engages in the contemplated “careful
evaluation of a thorough record” in all cases in which parties have competing petitions
seeking DVPA restraining orders; whereas the contrary view would permit a trial court or
a party to avoid the required analysis simply by calendaring or noticing competing
petitions for separate hearings. We fail to see how the recognized legislative purpose of
section 6305 would be advanced by an interpretation that permits the parties or trial court
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to avoid the higher evidentiary burden simply through fortuitous calendaring choices by
the clerk’s office or intentional or unintentional scheduling of hearings on each party’s
request for DVPA restraining orders on different dates or times.
Third, we find no support in the statute or case authority for Husband’s suggestion
that the Legislature intended section 6305 to apply only in situations where the parties
seek competing restraining orders based upon the same alleged incident of domestic
violence. The DVPA expressly contemplates that a single restraining order may be based
upon multiple acts of abuse. (§ 6300, subd. (a) [authorizing an order to issue based upon
“reasonable proof of a past act or acts of abuse”].) More importantly, the provision of the
Penal Code that was expressly incorporated into section 6305, states that the trial court
should consider “the history of domestic violence between the persons involved” in
determining which party should be deemed the primary or dominant aggressor. (Pen.
Code, § 836, subd. (c)(3).) This provision would be rendered entirely superfluous if
section 6305 was intended to apply only to situations in which a single incident of
domestic violence is alleged in two separate petitions. “ ‘An interpretation that renders
statutory language a nullity is obviously to be avoided.’ ” (Toulumne Jobs & Small
Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1039; Scher v. Burke (2017)
3 Cal.5th 136, 146 [“we ordinarily construe enactments to avoid rendering any provision
superfluous”].) Thus, we decline to adopt Husband’s interpretation here.2
2 We also note that Husband’s position on appeal overlooks the fact that his
petition expressly sought a DVPA restraining order based upon the same incident alleged
as the basis for Wife’s petition. In closing arguments, Husband expressly conceded that
[footnote continued on next page]
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Finally, we do not believe that our interpretation of section 6305 creates the
hypothetical procedural conflicts suggested by Husband or the Court of Appeal in
Conness, supra, 122 Cal.App.4th 197. Husband argues that we should avoid an
interpretation of the statute that results in disparate treatment of similarly situated
litigants. We agree, but we believe it is Husband’s interpretation that creates the potential
for this result. Under Husband’s interpretation, one party could simply wait for the
issuance of an order on the opposing party’s petition, immediately file a new petition
against the opposing party, and effectively achieve the same result as a mutual restraining
order without being subject to the same level of scrutiny as if the petitions had been heard
together. In contrast, holding that competing petitions for DVPA restraining orders must
be subject to section 6305, regardless of whether they are heard together or separately
ensures that in every case the same standard is applied regardless of how the trial court
calendars the matter in any given case.
We also respectfully disagree with our colleagues in Conness that requiring
compliance with section 6305, even where petitions are heard separately, creates a
“procedural snarl” that trial courts are not equipped to unravel. (Conness, supra,
122 Cal.App.4th at p. 203.) The Court of Appeal in Conness hypothesized that a party
who had already obtained a restraining order could “thwart [the opposing party’s] effort
the most recent incident of alleged abuse upon which both petitions were based was the
October 28, 2019 incident. Thus, even if we agreed with Husband’s interpretation of
section 6305, the trial court would still have been required to conduct an analysis under
section 6305, and its discussion of which party should be considered the “primary
aggressor” would not suggest an erroneous application of the law.
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to obtain a second, ‘mutual,’ order by the simple expedient of failing to appear”; that a
trial court would have difficulty retroactively applying section 6305 to an order that had
already been issued; or that difficulties might arise when a subsequent petition is filed in
a different county. (Conness, at pp. 202-203.) However, we believe the trial court is well
equipped to deal with any such concerns.
DVPA restraining orders are not permanent orders. Instead, they are “subject to
termination or modification by further order of the court,” either upon stipulation or after
a noticed hearing (§ 6345, subds. (a), (d)); and, such a termination or modification is
proper “upon a showing that there has been a material change in the facts upon which the
injunction or temporary restraining order was granted . . . or that the ends of justice
would be served by the modification or dissolution of the injunction or temporary
restraining order” (Code Civ. Proc., § 533; Loeffler v. Medina (2009) 174 Cal.App.4th
1495, 1503-1504 [Code of Civil Procedure section 533 applies to the dissolution or
modification of DVPA restraining orders.]). Moreover, when petitioning for a DVPA
restraining order, a party is required to disclose the existence of any other restraining
orders currently in place as well as any other court cases involving the parties (Jud.
Council Form DV-100).
Thus, to the extent a DVPA restraining order has already been issued in favor of
one party, the trial court need not do any more than provide notice that the hearing on the
subsequently filed petition will also address modification or termination of that prior
order to avoid the perceived procedural hurdles envisioned in Conness, supra,
122 Cal.App.4th 197. At the hearing, the trial court can then evaluate the competing
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petitions under section 6305 and, if necessary, terminate a prior order, issue a new mutual
restraining order, and make the necessary findings of fact in support of such an order.
Notice of the intent to consider modification or termination of the prior order also seems
sufficient to dissuade any party from willingly refusing to appear. While it is true that the
failure of one party to appear would prevent the issuance of a mutual restraining order,
the absent party would risk termination of any prior order and issuance of a new order in
favor of the opposing party. (§ 6345, subd. (d).) Under such circumstances, the incentive
for a party to attempt to hold the proceedings hostage by refusing to appear would seem
minimal.
Finally, to the extent a prior DVPA restraining order has already been issued by a
trial court in a different county, the trial court is already empowered to issue an order to
show cause why the matter should not be transferred to the court that issued the original
order. (Williams v. Superior Court (1989) 216 Cal.App.3d 378, 386 [trial court may
order transfer of action after “a noticed motion or order to show cause”].) While transfer
of the cause to a different county may represent an inconvenience to the subsequent
petitioner, it represents no greater inconvenience than that imposed by the DVPA’s
provisions for renewal of orders. (§ 6345 [providing for renewal of protective order after
noticed motion].)
For the above reasons, we agree with Melissa G. that section 6305 should apply to
all cases in which parties present competing petitions for DVPA restraining orders,
regardless of when the petitions are filed or calendared for hearing. Interpreting the
statute in this manner promotes the legislative purpose of section 3605 by ensuring that
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mutual restraining orders are not issued absent the careful scrutiny envisioned by the
Legislature; ensuring that all parties similarly situated have their requests evaluated under
the same standards; and avoiding the very conflicts identified by Husband that might
arise as the result of different methods of calendaring used by different courts. Thus, we
find no error in the trial court’s application of the law to the extent it believed it was
constrained by the provisions of section 6305 in this case.
C. Section 6305 Permits the Trial Court to Designate One Party the Dominant
Aggressor
Alternatively, Husband argues that, even if section 6305 applies, the trial court
abused its discretion in applying the statute. In making this argument, Husband does not
challenge the trial court’s factual findings or the sufficiency of those findings to support
granting a DVPA restraining order in favor of Wife. Instead, Husband only argues that
under section 6305, once the trial court determined both Husband and Wife to be
aggressors, it was not permitted to choose between the two in granting relief to only one
of them. We disagree.
Husband’s argument was recently addressed and rejected in K.L., supra,
70 Cal.App.5th 965. As explained in that case, “in making [the findings required by
section 6305,] the court ‘shall consider’ both the intent of the law protecting domestic
violence victims and the specific circumstances of the history of domestic violence in the
case before it. [Citation.] Specifically, the statute mandates that the court determine
which of the parties is the ‘most significant’ aggressor. [Citation.] Such a determination
requires that the acts of the parties be weighed against each other. As a result, in
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deciding whether mutual restraining orders should issue, the trial court must consider the
parties’ respective alleged acts of domestic violence in concern, and not separately . . . .”
(Id. at p. 979.) We agree with K.L. that the plain words of the statute clearly contemplate
the trial court will: weigh the acts of the parties; determine whether one of the parties
should be considered the primary or dominant aggressor; and issue a mutual restraining
order only in the event neither party can fairly be characterized as the primary aggressor.
In reply, Husband acknowledges the holding in K.L., supra, 70 Cal.App.5th 965,
but claims that even if a trial court is permitted to weigh the acts of the parties, the trial
court in this case still abused its discretion by failing to make factual findings with
respect to each of the factors identified in section 6305. However, this argument ignores
the fact that section 6305 acts only to limit the issuance of a mutual restraining order.
The presence of the statutory factors and requirement of detailed factual findings are
necessary prerequisites to a grant of mutual relief. (§ 6305, subd. (a); K.L., supra,
70 Cal.App.5th at p. 979 [“[T]he language of the statute makes clear that mutual
restraining orders are the exception, and ‘shall not issue’ unless the trial court makes
specific findings . . . .”].) Nothing in the statute mandates the issuance of a mutual
restraining order. Nor does the statute require detailed findings of fact when the court
declines to issue a mutual restraining order.
In this case, the trial court granted Wife’s petition for a DVPA restraining order
and denied Husband’s competing petition. While it was appropriate for the trial court to
consider the factors set forth in section 6305 in order to determine whether granting
mutual relief would be appropriate, the trial court was not required to make detailed
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factual findings because it ultimately decided not to grant mutual relief. Because section
6305 does not impose any requirements when denying relief, the trial court was required
only to follow the general rule applicable to all petitions and provide “a brief statement of
the reasons for the decision in writing or on the record.” (§ 6340, subd. (b).) The trial
court clearly did so here, expressly stating on the record that it considered Husband to be
“the primary aggressor in this case,” notwithstanding the fact that it also believed Wife
had been a primary aggressor with respect to one of the alleged incidents.
Thus, the trial court did not abuse its discretion by considering whether Husband
should be considered a dominant or primary aggressor within the meaning of
section 3605. Nor did the trial court abuse its discretion by failing to make detailed
factual findings on all factors referenced in section 3605, since such findings are not
required where the trial court does not grant mutual relief.
D. Denying Husband’s Custody Request Was Not an Abuse of Discretion
Finally, Husband contends that, separate from the issue of whether a DVPA
restraining order was appropriate, the trial court abused its discretion in denying his
request for custody of his children. According to Husband, the trial court was mandated
by section 6304 to consider the children’s welfare when denying his petition but failed to
do so. We disagree.
Initially, we note that Husband has conflated two separate issues on appeal,
arguing that the trial court abused its discretion because it “did not consider whether the
issuance of a protective order, to protect the children from Wife’s domestic violence, was
appropriate” and thereafter repeatedly arguing that the trial court should have, at the very
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least, issued a protective order to protect his children from Wife. However, the question
of whether the trial court should have issued a protective order for the purpose of
protecting the children from Wife is distinct from the question of whether the trial court
should have issued a custody order in Husband’s favor.
With respect to the first question, the record shows that Husband never asked the
trial court to issue a restraining order for the purpose of protecting his children. His
petition requested a restraining order only to protect himself, despite having the option to
include his children as part of his request. Even at the time of the hearing, Husband
expressly acknowledged in his closing argument that his request for a restraining order
did not include his children. Thus, Husband never raised the issue in the trial court
proceedings, and we decline to consider whether such an order would have been
appropriate in this case. (Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d
124, 143 [“Appellate courts generally will not consider matters presented for the first
time on appeal.”]; Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657,
699 [same].)
Instead of seeking a restraining order for the protection of his children, Husband’s
petition requested the trial court change the current custody arrangement between the
parties in order to award him sole legal and physical custody of his children. Thus, the
only issue the trial court was called upon to decide with respect to the children was
whether awarding Husband sole custody of his children was appropriate. The trial court
denied Husband’s custody request; referred the matter for the relevant child welfare
services agency to conduct an investigation; and set the matter for a hearing on the issue
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of custody pursuant to section 3027.3 It is this decision that we review on appeal and, as
we explain, the record clearly shows the trial court did not abuse its discretion.
Following an extensive evidentiary hearing, the trial court made affirmative
findings that Husband committed domestic violence within the meaning of section 3044.
It also made findings that, even assuming Wife had committed acts of domestic abuse
against the children in the past, Husband had been “grossly derelict” in failing to take any
action to protect his children at the time of these events. Finally, the trial court found that
Husband had been “grossly negligent” for leaving loaded firearms within access of his
minor children. Husband expressly concedes the evidence was sufficient to support these
findings on appeal. Given these findings, the trial court could reasonably conclude that
Husband, as the party requesting a change of custody, had not met his burden to show
that such an order was in the children’s best interest. (In re Marriage of Mehlmauer
(1976) 60 Cal.App.3d 104, 109 [“[T]he moving party [bears] the burden of showing that
the best interests of the child require[s] the sought custody change.”].)
While Husband complains that the trial court also made findings that Wife had
previously abused the children, he ignores the fact that the trial court expressly referred
the matter to the relevant child welfare agency for further investigation and set the matter
for a further hearing to consider any necessary orders upon completion of that
investigation. This procedure is expressly authorized by statute whenever the trial court
3 Section 3027, subdivision (b), provides in pertinent part: “If allegations of child
abuse . . . are made during a child custody proceeding, the court may request that the
local child welfare services agency conduct an investigation of the allegations . . . . Upon
completion of the investigation, the agency shall report its findings to the court.”
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develops concerns regarding a child’s safety during a custody hearing (§ 3027) and
Husband has not explained why such an order was insufficient to address any perceived
safety concerns in this case. As such, Husband has failed to show the trial court abused
its discretion in denying his custody request.
IV. DISPOSITION
The order is affirmed. Respondent to recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
SLOUGH
J.
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