Opinion
A148675
02-02-2018
THE PEOPLE, Plaintiff and Respondent, v. HON GIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. Nos. 15019328, SNC224743)
Defendant Hon Gin was convicted of committing felony elder abuse in violation of Penal Code section 368, among other charges. Section 368 makes it a crime to willingly inflict pain or suffering on an elder adult "under circumstances or conditions likely to produce great bodily harm or death . . . ." (§ 368, subd. (b)(1).) During deliberations, the jury asked the court to define the term "likely" as used in section 368, further inquiring whether it meant "more likely than not, possible, reasonably possible?" The trial court declined to provide a definition, instead directing the jury to an instruction advising that words not specifically defined in the instructions were to be given their ordinary, everyday meanings. Defendant contends that the court's failure to define "likely" for the jury was prejudicial error. We agree, and we thus reverse.
All statutory references are to the Penal Code.
EVIDENCE AT TRIAL
On August 27, 2015, at approximately 9:00 a.m., 88-year-old Ye Ta Chang left his apartment on Grant Avenue in San Francisco. As he began walking down the street, he saw defendant, whom he had known for "several decades," hitting and kicking storefront doors. More than a month earlier, Mr. Chang had seen defendant get beaten up by three people. Without raising his voice, Mr. Chang told defendant, who was standing right next to him, that he was hitting and kicking other people's property and if the store manager saw him, he or she might have someone hit him again. Defendant immediately responded by punching him "[p]retty hard" on the right side of his face next to his eye. Mr. Chang stepped back on an uneven surface and fell to the ground. Defendant then walked off.
Shu Luan Huang was at work in a nearby store when she heard what sounded like a fist making contact with someone's skin. She looked outside and saw Mr. Chang lying on the ground with blood coming out of his mouth. She went outside, where she saw defendant point at Mr. Chang and say, " 'I hit you.' " Mr. Chang was starting to get up when defendant kicked him once in the legs. Defendant was talking, but Ms. Huang did not hear what he said because her attention was focused on Mr. Chang.
Defendant was arrested shortly thereafter.
Mr. Chang was taken to the hospital for treatment. He suffered a swollen, bruised area on his face that lasted three weeks. Additionally, when he fell, his dentures dislodged and cut the inside of his mouth, causing a laceration that required four stitches. He also suffered swelling and a scrape on his right ankle and scrapes on an elbow and knee.
Defendant, who testified on his own behalf, did not deny punching Mr. Chang. Rather, his theory was that he acted in self-defense. He testified as follows:
The morning in question, defendant, who was 60 years old and homeless, was walking on Grant Avenue when he heard Mr. Chang yelling at him not to mess up people's stores. Defendant stopped and was leaning up against a wall, and Mr. Chang was right in front of him. Mr. Chang yelled that a store manager would find someone to hit him like they had before. Defendant was scared because Mr. Chang was yelling loudly, and he was afraid a store manager would come out and hurt him. He tried to walk away because he did not want to get hurt, but Mr. Chang was pointing fingers at him so he punched him in the face and ran off. Defendant denied he had been hitting storefronts or cars or that he kicked Mr. Chang.
Defendant admitted he had pleaded guilty to a felony in 2011 and felony assault in 2014.
PROCEDURAL BACKGROUND
Defendant was charged by information with three felonies: assault with force likely to cause great bodily injury (count 1; § 245, subd. (a)(4)); inflicting injury on an elder adult under circumstances likely to produce great bodily harm or death (count 2; § 368, subd. (b)(1)); and battery resulting in serious bodily injury (§ 243, subd. (d)). Counts 1 and 2 alleged that defendant personally inflicted great bodily injury upon a victim who was 70 years of age or older (§ 12022.7, subd. (c)). The information also contained special allegations arising out of defendant's prior convictions.
An amended information deleted an allegation that defendant committed a serious or violent felony while on parole.
Defendant was tried before a jury on December 16 and 17, 2015. On December 17, he moved under section 1118.1 for judgment of acquittal on all counts. As pertinent here, defense counsel argued that defendant's one punch was not likely to cause great bodily injury as charged in count 2, the elder abuse charge. The court denied the motion, stating, "The defendant appears to have punched the victim in this case hard enough to make the victim fall to the ground. And one should understand that when you punch someone who is elderly—in this case, 88 years old—that hard, that it's an assault that is likely to produce great bodily injury. The fact that the injury may not have been as extensive as it could have been doesn't change that. When you punch someone that old, you are very much in danger of causing a fracture, if not death. So the Court sees that it's really no different than when, let's say, you swing at someone with a great amount of force and you miss. The fact that injury was not produced at all doesn't change the fact that if there had been contact, it would have likely produced great bodily injury, because the force is the issue, not the actual injury. That's my point of view as to Counts 1 and 2."
The jury began deliberations on December 18. As will be discussed in detail below, during deliberations the jury sent a note inquiring into the meaning of the term "likely" as used in the assault and elder abuse charges. The court responded by directing the jury to CALCRIM No. 200, on which it had previously been instructed. Shortly thereafter, the jury returned the following verdicts:
On count 1, not guilty of assault with force likely to cause great bodily injury but guilty of misdemeanor assault. On count 2, guilty of felony elder abuse. As to both counts, the great bodily injury enhancement was not true. On count 3, not guilty of battery with serious bodily injury but guilty of misdemeanor battery.
On December 21, defendant filed a motion for new trial as to count 2. He argued there was insufficient evidence to support the felony elder abuse conviction and at most he was guilty of the lesser included offense of misdemeanor elder abuse, which merely required the willful infliction of pain or suffering on an elder adult.
We do not see the court's ruling on the motion in the record, although it can obviously be assumed the court denied it.
Defendant's sentencing hearing was held on June 22, 2016. At the outset, the court struck a prior strike pursuant to section 1385. It then sentenced defendant to the midterm of three years in state prison on count 2 (the sole felony conviction), with total credits of 600 days. On counts 1 and 3, it sentenced defendant to time served. It also imposed standard fines and fees, and issued a restraining order prohibiting defendant from coming within 150 yards of Mr. Chang for three years.
The jury had found the special allegations regarding defendant's prior convictions, including a prior strike, to be true.
This timely appeal followed.
DISCUSSION
The Trial Court Committed Prejudicial Error by Failing to Define the Term "Likely"
Background
During deliberations, the jury sent a note asking the following questions: "What is the definition of 'likely' as expressed in the charges: (1) assault with deadly weapon or force likely to produce great bodily injury and (2) abuse of elder or dependent adult likely to produce great bodily harm or death. Is it more likely than not, possible, reasonably possible?"
The jury also sent a note asking whether the term "likely" as used in the assault charge referred to Mr. Chang or an average person. The court advised that it referred to Mr. Chang. This is not at issue on appeal.
The court discussed the inquiry with counsel, apparently both on and off the record. While we do not know what was said off the record, the following is what occurred on the record:
"THE COURT: [¶] . . . [¶] So what I indicated is that I'm going to respond by telling them that they have all the instructions that they require. If it's helpful, they can also look at Instruction 200, which says, in part, some words or phrases used during the trial have legal meanings, et cetera, et cetera. [¶] Mr. Bisesto [the prosecutor], you have no objection?
"MR. BISESTO: No, I don't.
"THE COURT: Mr. Pearlman [defense counsel]?
"MR. PEARLMAN: Your Honor, the objection I have is that I think they're wanting to know what that word means. And just looking at the definition that word[] means having a high probability of occurring, and I think the problem is, since their question asks is it possible, that's completely different than what likely means. And I think we should define it for them.
"THE COURT: How would you feel if I said to them, 'Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings,' which is what is in 200. [¶] Mr. Bisesto, is that fine with you?
"MR. BISESTO: Yes.
"THE COURT: Okay. So what I intend to do then, Mr. Pearlman, subject to your comments, is, 'Please refer to Instruction 200,' and then I'll say, 'Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.' I think that's the best thing to do, because we could quote a particular definition from a particular dictionary and it might slant their deliberations one way or the other, compared to a definition from another dictionary or from some case. And so the safest thing to do, the best thing to do, is to quote CALCRIM."
CALCRIM No. 200 provides in pertinent part: "Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings."
Consistent with its representations to counsel, the court gave this response to the jury's inquiry: "Please refer to instruction 200 which reads in part: 'Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.' "
Two hours later, the jury returned its verdicts: on count 1, not guilty of assault with force likely to produce great bodily injury but guilty of misdemeanor assault; on count 2, guilty of inflicting injury on an elder adult under circumstances likely to cause great bodily harm or death; and on count 3, not guilty of battery resulting in serious bodily injury but guilty of misdemeanor battery. The jury found the great bodily injury enhancements in counts 1 and 2 to be not true.
Analysis
In his primary argument, defendant contends the trial court erred in failing to define the term "likely" for the jury, an error he claims was prejudicial. Before reaching the merits of his argument, we address the People's argument that defendant forfeited this challenge. As the People would have it, "[A]lthough appellant initially proposed an instruction, the court suggested a response that advised the jury to review the instructions already given. The court invited appellant to comment on the proposed response to the jury's request, but appellant was silent. In the context of the proceedings, the silence must betoken approval of the court's proposal and, consequently, a forfeiture of any claim that other instructions should have been given."
A review of the exchange between the court and counsel confirms that defense counsel did in fact object to the court's response. The court indicated it was going to advise the jury it had all the instructions it needed and refer it to CALCRIM No. 200, "which says, in part, some words or phrases used during the trial have legal meanings, et cetera, et cetera." After the prosecutor said he had no objection to such a response, the court inquired of defense counsel's position. Defense counsel responded that he objected to the court's proposal because the jury wanted to know what "likely" meant and he believed the court should define it, further suggesting it meant "having a high probability of occurring . . . ." The court again proposed that it refer the jury to CALCRIM No. 200 and quote relevant portions of that instruction, asking the prosecutor about that solution. With the prosecutor's agreement, and "subject to [defense counsel's] comments," that is how the court then proceeded. This exchange cannot reasonably be construed as defense counsel acquiescing in the court's response to the jury. Defense counsel expressly objected to the trial court's decision not to define the term, and nothing further was required to preserve the issue for an appellate challenge. (See People v. Giardino (2000) 82 Cal.App.4th 454, 464-465.)
Moving on to the substance of defendant's argument, defendant contends the trial court was obligated to respond to the jury's question by defining the term "likely." This is true, he submits, whether the term as used in section 368 is a common one or a technical one. We agree.
As a general matter, the trial court has a duty to help the jury understand the legal principles it is asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) Where a term used in an instruction is a common one, the trial court need not define the term, unless the jury manifests confusion as to its meaning. (5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Trial, § 706, p. 1087; People v. Chaffin (2009) 173 Cal.App.4th 1348, 1351 [trial court has no duty to give a clarifying instruction, absent a request, if a term in an instruction has a plain and unambiguous meaning that is " ' "commonly understood by those familiar with the English language" ' "]; People v. Solis (2001) 90 Cal.App.4th 1002, 1014-1015.) When a term used in an instruction has a technical meaning peculiar to the law, however, a trial court has an obligation to give an amplifying or clarifying instruction. (People v. Chaffin, supra, 173 Cal.App.4th at p. 1351; People v. Woodward (2004) 116 Cal.App.4th 821, 834.)
Here, the jury asked the court to define the term "likely," which appeared in both counts 1 and 2. At first blush, it might seem incontrovertible that the term is a common one that ordinarily means probable. (See, e.g., People v. Savedra (1993) 15 Cal.App.4th 738, 744 ["in ordinary usage and in many legal contexts 'likely' means 'probable' or, as the jurors put it, 'more probable than not' "].) Closer examination, however, reveals that the term has been assigned a wide variety of definitions, as demonstrated by this discussion in People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 916-917:
"[Defendant] urges at the outset that the most commonly understood meaning of 'likely' is 'having a better chance of occurring than not.' While the word is often defined in these terms (see, e.g., 8 Oxford English Dict. (2d ed. 1989) p. 949, col. 1; Webster's 3d New Internat. Dict. (1965) p. 1310, col. 3), modern legal references in particular suggest that 'likely' may be used flexibly to cover a range of expectability from possible to probable.
"For example, a legal dictionary states that while 'likely . . . [m]ost often . . . indicates a degree of probability greater than five on a scale of one to ten . . . it may also refer to a degree of possibility that is less than five on that same scale.' (Garner, A Dict. of Modern Legal Usage (2d ed. 1995) p. 530, col. 1.) This same source refers the reader to the definition of 'probable' (ibid.), there explaining that the words 'probable,' 'likely,' and 'possible' represent, in order of decreasing strength, gradations of the relative chance that something might happen, such that 'likely' 'is "a strong 'possible' but a weak 'probable.' " [Citation.]' (Id., p. 693, col. 2 to p. 694, col. 1, italics in original.)
"One legal thesaurus includes, as synonyms for 'likelihood,' the following: 'chance,' 'conceivability,' 'fair chance,' 'fair prospect,' 'plausibility,' 'possibility,' 'potential,' 'reasonable chance,' and 'well-grounded possibility.' (Burton, Legal Thesaurus (2d ed. 1992) p. 320, col. 2.) Another legal dictionary/thesaurus indicates a parallel range of meaning, citing 'inclined,' 'conceivable,' and 'possible' among the synonyms for 'likely.' (Stratsky, West's Legal Thesaurus/Dict. (Special Deluxe Ed. 1986) p. 459.)"
In light of this, it is not surprising the jury expressed confusion over the meaning of "likely." The court here assumed section 368 used the term in its common sense, as evidenced by its response to the jury's note that directed it to the portions of CALCRIM No. 200 which instructs that words not defined are to be given their "ordinary, everyday meanings." But assuming the court was correct that section 368 uses "likely" in its ordinary sense, its response was inadequate. Where the jury has expressed confusion about a common term, section 1138 imposes upon the court a duty to clear up the jury's confusion. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212; People v. Smithey (1999) 20 Cal.4th 936, 985 ["Section 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law."].) "This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee, supra, 53 Cal.3d at p. 97.) In exercising that discretion, the trial court "must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (Ibid.; People v. Giardino, supra, 82 Cal.App.4th at p. 465.)
Section 1138 provides in pertinent part, "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
CALCRIM No. 830 instructed the jury on the elements of felony elder abuse, which instruction defined the words or phrases "willfully," "great bodily injury," "elder," and "unjustifiable." It did not define "likely," however, and it can thus be said the instructions were not "full and complete." Further, the jury manifested its confusion over the meaning of the term by asking for a definition, and specifically querying whether it meant "more likely than not, possible, reasonably possible?" Given all this, and the various meanings ascribed to the term "likely"—and especially because the jury identified three different potential meanings of the term—the court's failure to define it for the jury was an abuse of discretion. (See, e.g., People v. Ross (2007) 155 Cal.App.4th 1033, 1043 [court erred in not defining "mutual combat"]; People v. Giardino, supra, 82 Cal.App.4th at p. 466 [court erred in not addressing jury's question regarding "resistance"]; People v. Cordero (1989) 216 Cal.App.3d 275, 282 [error not to define "consequences"]; People v. Miller (1981) 120 Cal.App.3d 233, 235-236 [error not to define "great bodily injury"].)
We would reach the same result if we were to conclude "likely" as used in section 368 is a technical term. A term has a technical, legal meaning when it has a definition that differs from its nonlegal meaning. (People v. Estrada (1995) 11 Cal.4th 568, 574.) While no published authority has decided the meaning of "likely" as used in section 368, multiple cases have defined the term in the context of section 273a, the child endangerment statute on which section 368 was modeled. (People v. Sargent (1999) 19 Cal.4th 1206, 1216, fn. 6 ["Section 368 was patterned on and is virtually identical to section 273a. Cases interpreting one section are therefore appropriately used to interpret the other."].) And those cases lack consensus as to the meaning of "likely" in that context. (Compare People v. Valdez (2002) 27 Cal.4th 778, 784 ["likely" means the " 'probability of serious injury is great' "]; People v. Sargent, supra, 19 Cal.4th at p. 1216 [same]; People v. Chaffin, supra, 173 Cal.App.4th at p. 1352 [same]; People v. Jaramillo (1979) 98 Cal.App.3d 830, 835 [same], with People v. Wilson (2006) 138 Cal.App.4th 1197, 1204 ["likely" means "a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death"] and with People v. Hansen (1997) 59 Cal.App.4th 473, 479 ["likely" means a serious health hazard or physical danger is " 'reasonably foreseeable' "].) Nevertheless, those cases do uniformly suggest that "likely" has a particular legal—and thus technical—meaning in that context. And where a term as used in an instruction has "a technical meaning peculiar to the law which is not commonly understood by the average person," the court is obligated to define the term, even in the absence of a jury request. (People v. Brucker (1983) 148 Cal.App.3d 230, 239; accord, People v. Estrada, supra, 11 Cal.4th at p. 574; People v. Roberge (2003) 29 Cal.4th 979, 988; People v. Richie (1994) 28 Cal.App.4th 1347, 1360 [terms require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance].)
In short, whether section 368 uses the term "likely" in its common sense or in a technical sense particular to that statute, the trial court was obligated to define the term for the jury in response to its question. Its failure to do so prejudiced defendant.
The applicable standard by which we analyze prejudice in this context depends on the nature of the error. If the term was a common one such that the trial court abused its discretion under section 1138, the error is subject to the standard set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Solis, supra, 90 Cal.App.4th at p. 1015; People v. Miller, supra, 120 Cal.App.3d at p. 236.) That is, reversal is required if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson, supra, 46 Cal.2d at p. 836.)
Alternatively, where an instruction omits a required definition, we apply the standard set forth in Chapman v. California (1967) 386 U.S. 18. Under that standard, "An instruction that omits a required definition of or misdescribes an element of an offense is harmless only if 'it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ' " (People v. Mayfield (1997) 14 Cal.4th 668, 774, overruled on other grounds in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2; People v. Harris (1994) 9 Cal.4th 407, 424.) As defendant correctly asserts, the trial court's error warrants reversal under either standard.
It was evident throughout the trial that the term "likely" was a key point in the case. During opening statements, the prosecutor told the jury that "the force of punching an 88-year-old man is likely to cause great bodily injury." And in his closing argument, he mentioned the term 19 times. The defense, too, centered on the term "likely." Defendant moved for dismissal under section 1118.1, arguing there was insufficient evidence to support the elder abuse count because the punch was not "likely" to cause great bodily injury. Defense counsel addressed the term at least nine times in his closing argument. And he moved for new trial based largely on the trial court's response to the jury's question.
Clearly, the concept of "likely" as used in section 368 was central to the case. And the jury telegraphed to the court that it was unclear what it meant. Not only did it ask for a definition, but it proposed three possible definitions: possible, reasonably possible, and more likely than not. This suggested that at least one juror understood "likely" to mean "possible." But no authority indicates this was the proper definition of the term as it is used in section 368. Rather, it is a lower standard than the term's most common meaning—probable—and it is certainly a lower standard than the various definitions applied in the child endangerment context. Thus, because the court declined to define the term, the jury may have settled on "possible" as the meaning of the term "likely," which could have resulted in a conviction based on a lesser standard than the jury should have applied.
Defendant's guilt on the elder abuse charge was not a foregone conclusion. The jury did not believe Mr. Chang suffered great bodily injury, as evidenced by its not guilty verdict on the felony battery charge, as well as its not true findings on the great bodily injury enhancements. The jury also did not believe that the force used was likely to result in great bodily injury, as evidenced by its not guilty verdict on count 1. Had the jury been properly instructed, it may have reached a different result on count 2.
The People argue that the jury verdicts confirm that the jury did not interpret "likely" as meaning "possible." As they would have it, "The jury convicted appellant of abuse of an elder likely to produce great bodily injury but acquitted him of assault by means of force likely to produce great bodily injury. In the absence of record evidence to indicate otherwise, it must be presumed that the jury applied the same definition of 'likely' to each count. Had the jury believed that 'likely' meant 'possible,' it would have convicted appellant of assault by means of force likely to produce great bodily injury because it is possible to injure a person seriously by knocking him or her down on a concrete street. [¶] The jury's verdicts may be reconciled in such a way to shed light on its understanding of 'likely.' It plainly believed that assaulting a person with a single punch was not likely to produce great bodily injury because such injury was improbable. However, abuse of an 88-year-old elder by punching him in the face was likely to produce great bodily injury because his age and physical condition made such injury probable." While error may be found harmless based on other findings made by the jury (e.g., People v. Covarrubias (2016) 1 Cal.5th 838, 898-899), that is not the case here.
It is correct that the jury did not believe Mr. Chang had actually suffered great bodily injury, as it found the great bodily injury allegations to be not true, and it found defendant not guilty of felony battery. The issue, then was the meaning of the term "likely" as used in counts 1 and 2. Count 1 charged defendant with assaulting Mr. Chang with force "likely to produce great bodily injury" (CALCRIM No. 875), Count 2 with inflicting injury on Mr. Chang "under circumstances or conditions likely to produce great bodily harm or death." (CALCRIM No. 830.) Thus, felony assault focused on the force defendant used, while felony elder abuse focused on the circumstances surrounding his use of force. A juror who understood "likely" to mean "possible" could have concluded that the punch from a 60-year-old homeless man was not likely to cause great bodily injury, while concluding that the same punch was thrown under circumstances (e.g., an 88-year-old man standing on uneven ground) that could have produced great bodily harm.
Defendant asks that, in the event we find reversible error, we reduce the conviction to misdemeanor elder abuse. In his opening brief, he based this request on section 1181, subdivision (6), but on further review his reply brief acknowledges that section is not applicable "because [he] has not challenged the sufficiency of the evidence for the conviction of felony elder abuse." Instead, he requests that we reduce the offense to misdemeanor elder abuse pursuant to section 1260, which states that we "may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances." Because we do not decide here that there was insufficient evidence to support the felony conviction but rather that the jury was not properly instructed, we decline defendant's invitation to reduce the offense to a misdemeanor and instead remand for further proceedings.
Section 1181, subdivision (6) provides that a court may grant a new trial "When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial. . . ."
While as we do not reach other arguments, we do note that the Attorney General agrees defendant was entitled to one more day's credit. --------
DISPOSITION
The judgment of conviction is reversed, the effect of which is, as the Attorney General advised at oral argument, that the protective order is dissolved.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Miller, J.