Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA046968 Kathleen Blanchard, Judge.
Joanie P. Chen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Appellant Rikki Lyn Allen appeals from the judgment (order granting probation) entered following her convictions by jury on count 1 – possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and count 2 – transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)). The court found appellant ineligible for Proposition 36 probation, suspended imposition of sentence, and ordered appellant placed on formal felony probation for three years with a probation condition that she serve 90 days in local custody. We affirm the judgment in part, reverse it in part, vacate it in part, and remand the matter for resentencing.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that at 11:30 a.m. on September 23, 2009, Los Angeles County Sheriff’s Deputy Wayne Waterman and his partner conducted a traffic stop of a car in Lancaster. Douglas McDonald was driving and appellant was the passenger. The car was registered to appellant. Waterman’s partner ordered McDonald out of the car, smelled the odor of marijuana emanating from McDonald, and found marijuana in his pocket.
Waterman approached the passenger side of the car, contacted appellant, and saw a purse next to her left leg as she was sitting in the car. Waterman had appellant exit the car and sit on the curb. Waterman walked to the passenger’s side of the car and saw the purse on the floorboard. Waterman asked appellant if the purse was hers and she replied yes. Waterman asked for consent to search the purse and, after about three seconds, appellant consented. Waterman searched the purse and found in its interior compartment a plastic baggy containing.81 grams of a white powder containing methamphetamine. He testified it was a “very [usable]” amount. Appellant did not appear to be under the influence of a controlled substance.
After Waterman found the methamphetamine, he asked appellant what it was. She replied it was nail powder. In 2002, appellant suffered a felony conviction for possessing a controlled substance (Health and Saf. Code, § 11377, subd. (a)), and, in the same case, a misdemeanor conviction for being under the influence of a controlled substance (Health and Saf. Code, § 11550, subd. (a)).
The court instructed the jury to consider appellant’s prior convictions for narcotics-related offenses only for the purpose of deciding whether she had knowledge that the substance in the present case was a narcotic.
2. Defense Evidence.
In defense, appellant testified at the 2010 trial as follows. In 2002, in the above mentioned prior case, appellant was convicted of possessing methamphetamine and being under the influence. She entered a plea in the prior case because her attorney had urged her to do so to take advantage of Proposition 36, and she had not in fact possessed methamphetamine. Appellant claimed that the methamphetamine at issue in that case had belonged to someone else who was at her home, but she admitted she had been under the influence of methamphetamine. Appellant completed a Proposition 36 program in connection with that 2002 conviction. Appellant did not use drugs after her 2002 conviction.
Appellant denied knowledge the substance she possessed in the present case was methamphetamine, and claimed she had believed it was nail powder. During the morning of September 23, 2009, and prior to the traffic stop, appellant was wearing very long acrylic nails and had broken four of them off. She was going to meet a boyfriend for lunch. Appellant called her friend Angel and asked her for the nail powder so appellant could fix her nails. Angel indicated she had the nail powder so appellant went to Angel’s house. Appellant was running a little behind so she walked in and asked if Angel had the powder. Angel gave appellant a rolled-up bag and said, “Yeah, here you go.”
Appellant did not know McDonald possessed marijuana in his pocket, and McDonald did not smoke marijuana in appellant’s car. Appellant knew what methamphetamine looked like. When Angel gave appellant the packet containing the methamphetamine, appellant did not unroll the packet or look at it.
During cross-examination, appellant testified that, in the present case, the bag containing the powder was folded two or three times and she did not see the substance until it was in the police officer’s hand. Appellant had used methamphetamine for perhaps four years, and had used it probably once a week. A photograph (People’s exhibit No. 3) of the baggy and methamphetamine retrieved from appellant’s purse depicted what methamphetamine had looked like in the past.
Appellant had known Angel for many years and the two were very good friends. Angel was a past methamphetamine user who probably had not used methamphetamine for at least six to seven years. Appellant and Angel had participated in rehabilitation together. Appellant no longer spoke with Angel, who was in Washington. Appellant did not, during her testimony, provide Angel’s last name.
ISSUES
Appellant claims the trial court (1) erroneously failed to give sua sponte CALCRIM No. 3406, and (2) erroneously denied her request for Proposition 36 probation.
DISCUSSION
1. The Trial Court Did Not Err by Failing to Give Sua Sponte CALCRIM No. 3406.
Appellant did not request that the court give CALCRIM No. 3406 on the doctrine of mistake of fact, and the court did not give that instruction. During jury argument, the parties thoroughly argued the issue of whether appellant knew what she possessed was methamphetamine. On April 15, 2010, the jury retired to deliberate and, less than 20 minutes later, notified the court they had reached a verdict.
Appellant claims the trial court erroneously failed to give sua sponte CALCRIM No. 3406. We disagree. Mistake of fact can impact criminal responsibility in two common situations. Although either may be characterized as exemplifying a “mistake of fact defense, ” it is useful to distinguish them. First, where a defendant is charged with a general intent crime, a good faith mistake of fact may constitute a defense. (Cf. Ceja v. Rudolph & Sletten, Inc. (2011) 194 Cal.App.4th 584, 603 (Ceja); People v. Russell (2006) 144 Cal.App.4th 1415, 1425-1426 (Russell); People v. Rivera (1984) 157 Cal.App.3d 736, 742-743.) In this situation, mistake of fact constitutes a defense only if it is also objectively reasonable. (Ceja, supra, 194 Cal.App.4th at p. 603.) At common law, an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person was indicted an innocent act, was always a good defense. (People v. Hernandez (1964) 61 Cal.2d 529, 535.)
When there is substantial evidence of an honest and reasonable mistake of fact which would absolve the defendant of criminal responsibility, the trial court has a sua sponte duty to instruct on such mistake of fact (cf. People v. Lucero (1988) 203 Cal.App.3d 1011, 1015-1018, fn. 4), as long as it appears the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424.)
Second, mistake of fact can operate to negate an element of specific intent in a specific intent crime, whether or not the mistake of fact is reasonable. (Russell, supra, 144 Cal.App.4th at pp. 1420, 1424, 1426-1427, 1431; People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11; cf. Ceja, supra, 194 Cal.App.4th at p. 603.) There is an issue as to whether a trial court has a sua sponte duty to instruct on mistake of fact in this situation. Russell characterized receiving stolen property as a specific intent crime to the extent it required knowledge the property was stolen (Russell, supra, 144 Cal.App.4th at p. 1425), and Russell concluded a trial court erred by failing to instruct sua sponte on mistake of fact as negating knowledge. (Id. at p. 1431.) Russell did not discuss whether the fact the evidence of mistake of fact was presented merely to negate the specific intent element of a specific intent crime and not as a defense to a general intent crime impacted the determination of whether the trial court had said sua sponte duty to instruct.
A specific intent crime requires the defendant to go beyond an intent to do the proscribed act; the defendant must intend to do some further act or achieve some additional consequence. (People v. Mendoza (1998) 18 Cal.4th 1114, 1127.)
There is authority for the proposition receiving stolen property is not a specific intent crime. (People v. Rodriguez (1986) 177 Cal.App.3d 174, 179.) However, there is no dispute mistake of fact can negate the knowledge element of that crime.
More recently, in People v. Jennings (2010) 50 Cal.4th 616 (Jennings), our Supreme Court stated, “In People v. Saille (1991) 54 Cal.3d 1103 (Saille), we held that evidence ‘proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt’ may, but only upon request, justify the giving of a pinpoint instruction that ‘does not involve a “general principle of law” as that term is used in the cases that have imposed a sua sponte duty of instruction on the trial court.’ [Citation.] ‘Such instructions relate particular facts to a legal issue in the case or “pinpoint” the crux of a defendant’s case, ... They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte.’ ” (Jennings, supra, 50 Cal.4th at pp. 674-675.)
The present offenses of possession of methamphetamine and transportation of methamphetamine are not specific intent crimes. (People v. Martin (2001) 25 Cal.4th 1180, 1184-1185, fn. 4 (Martin) [possession]; People v. Cortez (1985) 166 Cal.App.3d 994, 997-998 [transportation].) Nonetheless, each of these crimes contains certain knowledge elements, including the defendant’s knowledge of the narcotic character of the substance. (Martin, supra, 25 Cal.4th at p. 1184 [possession]; People v. Rogers (1971) 5 Cal.3d 129, 133 [transportation].) To that extent, Russell and Jennings each would appear to permit evidence of mistake of fact to negate that knowledge element. Nonetheless, in that situation, Russell would appear to impose upon the trial court a sua sponte duty to instruct on mistake of fact, while Jennings would not.
To the extent mistake of fact would have operated in this case to negate the elements of the crimes of possession and transportation that appellant had knowledge of the narcotic character of the substance she possessed, we rely on our Supreme Court’s recent pronouncements in Jennings and conclude the trial court in the present case had no sua sponte duty to instruct on the doctrine of mistake of fact. (Cf. Jennings, supra, 50 Cal.4th at pp. 674-675; People v. Lee (1994) 28 Cal.App.4th 1724, 1733-1734 [accord].)
Moreover, even if the trial court erroneously failed to instruct sua sponte on mistake of fact (whether it merely negated an element of the crimes, or acted as an affirmative defense), it does not follow we must reverse the judgment. Evidence appellant knew the substance she possessed was methamphetamine was evidence she did not believe it was nail powder. Conversely, evidence she believed the substance was nail powder was evidence she did not know the substance was methamphetamine.
Our Supreme Court has not yet determined what test of prejudice applies to a failure to instruct on an affirmative defense. (People v. Salas (2006) 37 Cal.4th 967, 984.)
There is no dispute the People presented substantial evidence as to the element that appellant had knowledge of the narcotic character of the substance. Appellant’s possession of methamphetamine, under the circumstances here, constituted substantial evidence she knew of its narcotic character. (Cf. People v. White (1969) 71 Cal.2d 80, 83; People v. Eckstrom (1986) 187 Cal.App.3d 323, 331.) The People also presented evidence of appellant’s previous habitual methamphetamine possession and use, including her 2002 convictions for possessing methamphetamine and being under the influence of methamphetamine, as evidence she knew the substance she possessed and transported in the present case was methamphetamine.
Appellant was, by her own testimony, a former methamphetamine addict. When she had possessed methamphetamine in the past, it came in a bag like the one recovered from her purse. She obtained the substance in her purse from a person who, according to appellant, was a former methamphetamine addict. However, appellant told Waterman, and testified, she believed the substance was nail powder. Nonetheless, there was compelling evidence appellant knew the narcotic character of the substance she possessed in this case.
Appellant’s alleged friend Angel never testified, and appellant apparently made no effort to secure Angel’s attendance at trial through use of interstate compacts. (Pen. Code, § 1334, et seq.; see People v. Cogswell (2010) 48 Cal.4th 467, 471.) Appellant did not, in her testimony, supply Angel’s last name. The jury reasonably could have concluded the defense evidence that appellant believed the substance she possessed was nail powder was fabricated. Considering the totality of the evidence, we conclude there was overwhelming evidence appellant knew she possessed methamphetamine and, therefore, that she did not believe she possessed nail powder.
Moreover, the parties thoroughly argued the issue of appellant’s knowledge during jury argument. The court, using CALCRIM No. 220, instructed the jury to “impartially compare and consider all the evidence that was received throughout the entire trial” (italics added) to decide whether the People had proven their case beyond a reasonable doubt. We presume the jury followed this instruction (cf. People v. Sanchez (2001) 26 Cal.4th 834, 852) and, in particular, considered all the evidence when determining the knowledge issue. The court, using CALCRIM No. 2304 (possession) and CALCRIM No. 2300 (transportation), instructed the jury on the elements of the crimes, including the knowledge element, and the jury convicted appellant, necessarily concluding the knowledge element was satisfied, a conclusion inconsistent with a jury determination she believed the substance was nail powder. The jury reached their verdicts in less than 20 minutes. The alleged instructional error was harmless under any conceivable standard. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Russell, supra, 144 Cal.App.4th at p. 1431; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)
2. The Trial Court Erroneously Denied Appellant’s Request for Proposition 36 Probation.
a. Pertinent Facts.
At the May 6, 2010, sentencing hearing, appellant’s counsel asked that “the court find, as to count two, the transportation for personal use” and asked for “Proposition 36.” Appellant then submitted the matter.
The court indicated it was concerned appellant’s testimony in the present case reflected she was not taking responsibility for her crimes. The court also indicated that, although appellant had testified at trial that she had successfully completed a Proposition 36 program, she suffered her prior convictions in the late 1990’s, i.e., before Proposition 36 had been enacted. The court also suggested that, in those cases, she had been placed on probation and ordered to serve a term in local custody, facts inconsistent with the granting of Proposition 36 probation in those cases.
The preconviction probation report reflects appellant suffered a 1998 conviction for being under the influence (Pen. Code, § 647, subd. (f)), a 2000 vehicle registration conviction, and a 2000 conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). As to each offense, she was placed on probation and ordered to serve a term in local custody. As to the last two offenses, appellant was arrested in 1999, but suffered the convictions in 2000. As discussed post, Proposition 36 was enacted in 2001. We note the report does not reflect the previously mentioned evidence presented at trial that, in 2002, appellant suffered a conviction for possessing methamphetamine and a conviction for being under the influence of methamphetamine.
The court observed that, given appellant’s failure to take responsibility for her drug problem, the court did not think she was a good candidate for Proposition 36 “because that involves a lot of self-motivated -- accepting that you have a problem and accepting the treatment.” The court indicated that, in light of appellant’s criminal history and the fact 10 years (sic; see fn. 5, ante) had passed since her last felony conviction, the court would place appellant on probation with a probation condition that she participate in a drug program.
The court later stated, “as to count number two, which is a violation of Health and Safety Code section 11379, subdivision (a), imposition of sentence is suspended for a period of three years. That’s three years[’] formal felony probation on the following terms and conditions: you’re ordered to serve 90 days in the Los Angeles County Jail.” The court ordered additional probation conditions, including that appellant cooperate with her probation officer in a drug rehabilitation plan. The court imposed the same disposition as to count 1, except for the 90-day local custody term.
b. Analysis.
Appellant claims the trial court erroneously denied her request for Proposition 36 probation. We agree because, as discussed below, the trial court’s reasons for denying the request were flawed.
Penal Code section 1203, provides for probation, and subdivision (b)(3) thereof states that, “If the court determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served by granting probation to the person, it may place the person on probation.” “[Penal Code] [s]ection 1203 invests the superior court with power... to grant probation in a proper case in the exercise of its sound discretion.” (In re Black (1967) 66 Cal.2d 881, 888, italics added.) The court considers various criteria when exercising this discretion. (See Penal Code, § 1202.7; Cal. Rules of Court, rules 4.413 & 4.414.)
However, “California voters passed the Substance Abuse and Crime Prevention Act of 2000, commonly referred to as Proposition 36. It became effective on July 1, 2001.... [¶] ‘By its terms, Proposition 36 requires the court to grant probation with a drug treatment condition to any person convicted of a nonviolent drug possession offense and prohibits incarceration as a condition of probation.’ [Citation.] Under Proposition 36, persons convicted of a nonviolent drug offense are entitled to Proposition 36 probation under [Penal Code] section 1210.1, subdivision (a), unless they meet one of the express statutory disqualifications specified in subdivision (b). (See People v. Esparza (2003) 107 Cal.App.4th 691, 699 [‘When a defendant is eligible for Proposition 36 treatment, it is mandatory unless he is disqualified by other statutory factors....’].)” (People v. Castagne (2008) 166 Cal.App.4th 727, 732 (Castagne), italics added.) “A court may not impose incarceration as an additional condition of [Proposition 36] probation.” (Pen. Code, § 1210.1, subd. (a).)
Penal Code section 1210.1, subdivision (a) states, in relevant part, “(a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.... A court may not impose incarceration as an additional condition of probation.” Subdivision (b), states, “Subdivision (a) shall not apply to any of the following: [¶] (1) Any defendant who previously has been convicted of one or more violent or serious felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, respectively, ... [¶] (2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony. [¶] (3) Any defendant who, while armed with a deadly weapon, with the intent to use the same as a deadly weapon, unlawfully possesses or is under the influence of any controlled substance identified in [various Health and Safety Code sections]. [¶] (4) Any defendant who refuses drug treatment as a condition of probation. [¶] (5) Any defendant who has two separate convictions for nonviolent drug possession offenses, has participated in two separate courses of drug treatment pursuant to subdivision (a), and is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment, as defined in subdivision (b) of Section 1210.” Penal Code section 1210, provides, “ (a) The term ‘nonviolent drug possession offense’ means the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term ‘nonviolent drug possession offense’ does not include the possession for sale, production, or manufacturing of any controlled substance and does not include violations of [Penal Code section] 4573.6 or 4573.8.” We will refer to the present offenses as “nonviolent drug possession offenses.”
In People v. Dove (2004) 124 Cal.App.4th 1 (Dove), the court stated, “the defendant has the burden of proving that the possession or transportation was for personal use. [Citation.] Also, ... the trial court’s finding that the possession or transportation was not for personal use need not be stated on the record. If the trial court imposes a prison sentence, we will imply the necessary finding. Moreover, we will sustain that implied finding as long as it is supported by substantial evidence.” (Id. at p. 10.)
We note that, although the court granted probation in the present case with a probation condition that appellant cooperate with her probation officer in a drug rehabilitation plan, Proposition 36, through Penal Code section 1210.1, provides a comprehensive legislative drug rehabilitation scheme effective upon the granting of probation, with detailed provisions concerning, inter alia, (1) notification, qualifications, and duties of the drug treatment provider, and (2) violations of probation and dismissal of charges. Appellant seeks the benefit of these unique provisions.
Accordingly, appellant argues the present offenses were “nonviolent drug possession offenses” within the meaning of Penal Code sections 1210 and 1210.1, subdivision (a). Appellant did not, during the sentencing hearing, present evidence of personal use as to either of the present offenses. She requested the trial court to make a finding of personal use as to the transportation offense but made no such request as to the possession offense. This suggests appellant was requesting that the court make personal use findings as to both offenses based on the evidence presented at trial, including the evidence that appellant possessed.81 grams of a substance containing methamphetamine, which Waterman testified was a “very [usable]” amount.
Respondent concedes “possession of a controlled substance and transportation of that same substance” are “nonviolent drug possession offenses” and concedes it does not appear the record supports a finding that either offense in this case was not for personal use. Of course, the issue is whether the present offenses were for personal use. The trial court did not (and did not need to) expressly find the present offenses were not for personal use. Nor, however, did the trial court impose a prison sentence on the basis of which we, following Dove, might have concluded the trial court implied findings the present offenses were not for personal use.
As mentioned (see fn. 6, ante), “possession for personal use” (italics added) and “transportation for personal use” (italics added) of specified controlled substances are “nonviolent drug possession offenses” within the meaning of Penal Code section 1210, subdivision (a).
Even assuming the present offenses were “nonviolent drug possession offenses, ” the remaining issue is whether one or more of the factors specified in Penal Code section 1210.1, subdivision (b), renders subdivision (a) inapplicable. The trial court did not expressly address this issue.
Instead, the trial court appears to have denied appellant’s request for Proposition 36 probation for essentially two reasons: (1) appellant’s trial testimony indicated she was not taking responsibility for her crimes or drug problem and, because she was not taking responsibility for her drug problem, she was not a “good candidate” for Proposition 36 probation, and (2) her trial testimony that she had successfully completed a Proposition 36 program was erroneous because her prior convictions predated the enactment of Proposition 36, and because, in a prior case(s), she had been placed on probation and ordered to serve a term in local custody, facts inconsistent with placement on Proposition 36 probation in those cases.
That the probation which the trial court granted in this case was not granted pursuant to Proposition 36 is confirmed by the fact the trial court imposed as a condition of appellant’s probation that she serve 90 days in the Los Angeles County Jail, a condition which (as the trial court was aware) was inconsistent with the granting of Proposition 36 probation (see fn. 6, ante).
However, nothing in the language of Penal Code section 1210 or 1210.1 permits the trial court to rely on either of the previous two enumerated reasons to deny otherwise mandatory Proposition 36 probation. Moreover, as to the trial court’s second previously enumerated reason, although the probation report reflects appellant suffered, inter alia, a 1998 conviction for being under the influence and a 2000 conviction for possession of a controlled substance, i.e., drug-related convictions predating the 2001 enactment of Proposition 36, appellant never testified at trial concerning any prior conviction she suffered other than her 2002 convictions, and she never testified she participated in a Proposition 36 program except in connection with those 2002 convictions.
In sum, the trial court, when denying appellant’s request for Proposition 36 probation, erroneously treated the matter as if the court was denying probation in the exercise of its discretion under Penal Code section 1203, based on the two previously enumerated reasons, instead of denying otherwise mandatory Proposition 36 probation on the ground she was ineligible for reasons specified in Penal Code section 1210 and/or 1210.1. Moreover, as previously shown, the trial court erroneously denied Proposition 36 probation based on a misunderstanding concerning appellant’s record. We conclude the trial court prejudicially erred in (1) its analysis supporting the denial of appellant’s request for Proposition 36 probation, and (2) the court’s implied finding based on that analysis that she was ineligible for such probation.
Appellant asks that we resentence her under Proposition 36. Respondent requests we remand the matter for resentencing. We note the 2009 probation report in this case was an incomplete preconviction report which did not include appellant’s admitted 2002 convictions; this suggests the report might have been incomplete in other respects. We will vacate the pertinent trial court orders and remand the matter to permit the trial court to reconsider its dispositions de novo, including whether to grant or deny Proposition 36 probation to appellant, and for further proceedings consistent with this opinion. (Cf. Castagne, supra, 166 Cal.App.4th at pp. 736-737.)
We express no opinion as to whether appellant’s present offenses are “nonviolent drug possession offenses” within the meaning of Penal Code sections 1210 and 1210.1, subdivision (a), whether one or more provisions of Penal Code section 1210.1, subdivision (b) render Penal Code section 1210.1, subdivision (a) inapplicable (see fn. 6, ante), what findings, if any, the trial court should make on these issues, or what the dispositions of counts 1 and 2 should be.
DISPOSITION
The judgment of conviction is affirmed as to each of counts 1 and 2. As to counts 1 and 2, the trial court’s implied finding that appellant was ineligible for Proposition 36 probation is reversed and the trial court’s orders suspending imposition of sentence and imposing “three years[’] formal felony probation” are vacated; as to count 2, the trial court’s order imposing as a condition of probation that appellant serve 90 days in the Los Angeles County Jail is vacated; and the matter is remanded for resentencing, including reconsideration of whether appellant is or is not eligible for Proposition 36 probation, and for further proceedings consistent with this opinion.
We concur: CROSKEY, Acting P.J.ALDRICH, J.