Opinion
A149470
04-30-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHELLE S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR313135)
A jury convicted defendant Michelle S. of two counts of sexual intercourse with a child age 10 or younger (Pen. Code, § 288.7, subd. (a)) and, during a subsequent time period, continuous sexual abuse of a child age 14 or younger (§ 288.5). Defendant is serving concurrent prison terms of 25 years to life on the first two counts, consecutive to a term of 16 years on the third count. Defendant contends that with respect to the first two counts, the evidence required the trial court to instruct the jury on the lesser included offense of statutory rape, defined as unlawful sexual intercourse with a minor more than three years younger than the perpetrator. (§ 261.5, subd. (c).) The lesser offense carries a maximum penalty of three years (§§ 261.5, subd. (c), 1170, subd. (h)(1)) rather than the life sentence imposed for sexual intercourse with a minor age 10 or younger (Pen. Code, § 288.7, subd. (a)). We agree the pleadings and state of the evidence required instruction on the lesser offense and that the failure to provide instruction was prejudicial. We shall reverse the judgment as to those counts.
Individuals are referred to by their first name or initials to protect personal privacy. (Cal. Rules of Court, rule 8.90(b)(4), (10).)
All further section references are to the Penal Code.
Trial court testimony and proceedings
We summarize only those facts necessary to resolution of the issues on appeal.
Defendant was charged with sexual abuse of her adopted son, R.W. R.W. testified the conduct began after his parents separated and his mother moved with him and his two brothers to a Vacaville apartment. R.W. described two instances several days apart in which defendant called him into her bedroom and told him to undress and get into bed with her where she lay naked. At defendant's direction, R.W. placed his penis in her vagina and moved his hips back and forth until he ejaculated. R.W. said he believed there may have been more than five incidents at the apartment but could not remember how many.
R.W. testified he was born in July 2003 and was 11 years old when sexual intercourse with defendant first occurred. "Q. [W]hen you lived at the [apartment], what grade were you in? A. Sixth. . . . Q. How old were you? Eleven." The prosecutor asked a series of questions suggesting R.W. was mistaken about his age but the boy insisted he was 11 years old when living at the apartment. "Q. . . . Did you tell Detective Hardwick that you were 10 years old when you were living at the [apartment]? A. I do not believe so. I was 11 at that time. Q. Okay. But do you know that - exactly when you lived there? A. Yes. Q. . . . Now, did you tell Detective Hardwick that you were actually in 5th grade when you lived at the [apartment]? . . . A. I was in 6th grade. [¶] THE COURT [to the witness]: . . . she's not asking you what grade you were in. She's asking you what you told the detective. THE WITNESS: That's what I told her - the detective." The prosecutor asked R.W. if "something sexual happened" with defendant at the apartment and, when the boy said yes, returned to questions about his age. "Q. And how old were you when the first time something happened? A. I was 11, I believe. Q. Okay. Did you previously tell Detective Hardwick that you were 10? . . . A. No. I was 11 at the time. . . . Q. Did you previously tell Detective Hardwick you were in 5th grade when it first occurred? A. I [did] not. I was in 6th [grade] when that happened."
The prosecutor tried to establish the time of year when R.W. had sexual intercourse with defendant. "Q. Do you remember when it was that the first time this occurred? What month? A. I do not remember the month. Q. Do you remember the year it was that you lived in [the apartment]? A. It was 2013, coming on 2014. Q. Do you remember the Christmas of 2013. A. Yes. Q. Did the first incident happened before or after the Christmas of 2013. A. After, I believe." R.W. also testified the family moved from the apartment after the school year ended in June 2014.
R.W. testified the incidents continued after the family moved from the apartment to a house they shared with defendant's boyfriend, Ricky. R.W. said the incidents happened once a day for over a year. R.W. testified that Ricky was present in the room on one occasion and asked to receive a text message whenever R.W. and defendant had sex. Ricky sent messages encouraging R.W. to have sex with defendant and congratulating him when he did. Ricky texted R.W. "do [m]e good son[,] make me proud" and "do her again stud."
In a separate trial, Ricky was convicted of committing lewd acts on a child under age 14 and sentenced to 16 years in prison. (§ 288, subd. (a).) His appeal is pending.
Detective Hardwick's recorded interview with R.W. was played for the jury. R.W.'s age was a topic of the investigative interview "Q. . . . So the very first time this happened - you had mentioned on Sunday you were in the fifth grade - some time in the fifth grade. So you were - would have been how old then last school year? A. Ten. Q. Ten, okay. Were you 10 the whole year or just part of the year? A. I was 10 the whole year 'cuz my birthday is in the summer. Q. In July, right? Okay. So you would have turned 10 right before you started fifth grade. And then you turned 11 after fifth grade ended. A. Yes."
The parties stipulated that the custodian of records for the Vacaville apartment, if called as a witness, would testify that defendant "moved into the location between June 21st, 2013, and June 30th, 2013. The resident history report shows [defendant] terminated her apartment rental between March 24, 2014, and June 2nd, 2014."
Defendant testified in her defense. She denied sexual intercourse with R.W. but admitted to "inappropriate" touching on several occasions. She said she rubbed R.W.'s penis and he touched her breast and vagina. She testified the inappropriate touching occurred after she and her sons moved from the apartment into Ricky's house and occurred under coercion from Ricky, who threatened to physically harm her and her children if she did not comply.
The prosecutor questioned defendant about R.W.'s age when the family was living at the apartment. "Q. And after the divorce you moved to Vacaville; correct? A. Yes. Q. You moved into the [apartment]? A. Yes. Q. And you lived there - it looks like your lease was a year-long lease, correct? A. Yes. Q. And that was from June 2013 to June 2014? A. Well, I occupied that for a year but I don't believe it was a year lease. It was six - I think a six-month lease. Q. Okay. And then after your six months, can you renew from month to month? A. Yes. Q. And you occupied there for approximately a year, correct? A. Yes. Q. And you heard the stipulation earlier that you occupied there from approximately June 2013 to June 2014; correct? A. Yes. Q. And you were there with (R.W.) and your two other sons; correct? A. Yes. Q. And [Ricky] did not live there, correct? A. No, he didn't. Q. From the time period from June 2013 to June 2014, (R.W.) was 10 years old, correct? A. Yes."
The parties' briefs fail to discuss defendant's testimony concerning R.W.'s age.
In closing argument to the jury, the prosecutor maintained there were at least two acts of sexual intercourse between defendant and R.W. when they lived at the apartment and R.W. was 10 years old. The prosecutor argued that R.W.'s age was established by apartment records and the testimony of defendant and R.W. The prosecutor remarked: "Now, I know on the stand he thought he was 11 and in sixth grade but he wasn't. He couldn't do the math."
Defense counsel argued no sexual contact occurred when defendant and R.W. resided at the apartment and that R.W. was not 10 years old but 11 years old when the first contact occurred. Counsel argued R.W. "unequivocally testified to being 11 years old and that he's in the sixth grade. This is not about math, Ladies and Gentlemen, but about the burden of proof and also about reality. The DA, as the government, has to prove this case." Defense counsel suggested that R.W.'s testimony revealed that sexual contact occurred only after Ricky "comes into the picture," when R.W. was 11 years old, and undermined the claim of earlier sexual contact. Counsel also argued, "[T]his charge does not exist unless [R.W. is] 10 or younger." "[T]he age alone should get counts 1 and 2 out the door."
On counts 1 and 2, the court instructed the jury on the offense of sexual intercourse with a child 10 years of age or younger and battery as a lesser included offense. Defense counsel requested an instruction on commission of a lewd act on a child under the age of 14 (§ 288, subd. (a)) but the court refused it. No other lesser offense instructions were requested or provided as to counts 1 and 2.
"The defendant is charged in counts 1 and 2 with engaging in sexual intercourse with a child 10 years of age or younger in violation of Penal Code section 288.7(a). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant engaged in an act of sexual intercourse with R.W.; [¶] 2. When the defendant did so, R.W. was 10 years of age or younger; [¶] 3. At the time of the act, the defendant was at least 18 years old. [¶] Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun. [¶] Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required."
The ruling is not challenged on appeal.
Discussion
Defendant maintains the trial court had a sua sponte duty to instruct the jury on statutory rape (§ 261.5, subd. (c)), also termed unlawful sexual intercourse with a minor, as a lesser included offense to sexual intercourse with a minor age 10 or less (§ 288.7, subd. (a)) with which she was charged and convicted.
1. General principles governing instruction on lesser included offenses.
"On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense." (People v. Souza (2012) 54 Cal.4th 90, 113.) "A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citation.] This sua sponte obligation extends to lesser included offenses if the evidence 'raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.' " (People v. Lopez (1998) 19 Cal.4th 282, 287-288.)
" 'The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to it being given.' " (People v. Barton (1995) 12 Cal.4th 186, 195.) The obligation exists both to protect a criminal defendant's right to have the jury determine every material issue in the case and to safeguard the jury's truth-finding mission. (Id. at pp. 195-196.)
" 'Our courts are not gambling halls but forums for the discovery of truth.' [Citation.] Truth may lie neither with the defendant's protestations of innocence nor with the prosecution's assertion that the defendant is guilty of the offense charged, but at a point between these two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged. A trial court's failure to inform the jury of its option to find the defendant guilty of the lesser offense would impair the jury's truth-ascertainment function. Consequently, neither the prosecution nor the defense should be allowed, based on their trial strategy, to preclude the jury from considering guilt of a lesser offense included in the crime charged. To permit this would force the jury to make an 'all or nothing' choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence." (People v. Barton, supra, 12 Cal.4th at p. 196.)
"To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the 'elements' test and the 'accusatory pleading' test) must be met. The elements test is satisfied when ' "all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense." [Citation.]' [Citations.] . . . [¶] Under the accusatory pleading test, a lesser offense is included within the greater charged offense ' "if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." ' " (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.)
2. Statutory rape, as pled, was a lesser included offense to the charged sex offense.
The charged offense punishes "[a]ny person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger." (§ 288.7, subd. (a).) The lesser offense punishes "[a]ny person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator." (§ 261.5, subd. (c).)
The parties agree that a violation of section 261.5, subdivision (c) is not a lesser included offense of section 288.7, subdivision (a) under the elements test but disagree on application of the accusatory pleading test. Defendant argues the accusatory pleading in his case described conduct that necessarily would have violated section 261.5, subdivision (c). The information alleged, as to counts 1 and 2, "On or about and between December 31, 2013 and May 31, 2014, defendant . . . did commit a felony namely: SEX WITH A CHILD AGE 10 AND UNDER, a violation of Section 288.7(a) of the Penal Code . . . in that said defendant being a person 18 years of age and older, did, engage in sexual intercourse with R.W., a child 10 years of age and younger."
The information describes the offense " ' "in such a way that if committed as specified the lesser offense is necessarily committed." ' " (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.) The prosecution alleged defendant, "a person 18 years of age and older," had "sexual intercourse" with "a child 10 years of age and younger." If committed as alleged, defendant also necessarily committed statutory rape: "sexual intercourse with a minor who is more than three years younger than the perpetrator." (§ 261.5, subd. (c).)
The Attorney General argues the information charged defendant with having "sex" with a child age 10 or younger and, since "sex" includes both sexual intercourse and sodomy, the charged offense could have been committed without committing statutory rape that concerns sexual intercourse alone. But the information did not simply charge defendant with having "sex" with a child; it specified the act to be "sexual intercourse." The Attorney General also argues that statutory rape (§ 261.5, subd. (c)) is not a lesser included offense to sexual intercourse with a child age 10 or younger (§ 288.7, subd. (a)) because only the latter offense requires the perpetrator to be age 18 or older. "Given this, it is evident that a minor defendant could not be guilty of violating section 288.7, subdivision (a) under the charging document, even though a minor defendant could be guilty of violating section 261.5, subdivision (c)." The argument misconstrues the relevant considerations. We are not concerned with a theoretical "minor defendant" and his or her exoneration on a greater offense. The question is whether the information in this particular case describes the offense " ' "in such a way that if committed as specified the lesser offense is necessarily committed." ' " (People v. Lopez, supra, 19 Cal.4th at pp. 288-289.) Here, the information alleges defendant to be an adult, age 18 or older, who had sexual intercourse with a child age 10 or younger and, thus, "a minor who is more than three years younger than the perpetrator." (§ 261.5, subd. (c).) Defendant is correct that, as pled in this case, statutory rape" (§ 261.5, subd. (c)) is a lesser included offense to sexual intercourse with a child age 10 or younger (§ 288.7, subd. (a)).
3. The trial court erred in failing to instruct the jury on the lesser included offense of statutory rape.
"[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162; accord People v. Nelson (2016) 1 Cal.5th 513, 538.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed. [Citations.] [¶] In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.] Moreover, . . . the sua sponte duty to instruct on lesser included offenses . . . arises even against the defendant's wishes, and regardless of the trial theories or tactics the defendant has actually pursued. Hence, substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself." (Breverman, at pp. 162-163.)
As defendant correctly observes, the difference between the greater and lesser offenses here is the age of the victim and there was conflicting testimony on this point. R.W. insisted he was 11 years old, not 10 years old, when sexual intercourse first occurred at the Vacaville apartment. The prosecutor questioned R.W. closely on this point, asking "Did you tell Detective Hardwick that you were 10 years old when you were living at the . . . apartments?" R.W. responded, "I do not believe so. I was 11 at the time." In later testimony, however, R.W. said he moved from the apartment at the end of the school year in June 2014, which places the move before his 11th birthday in July 2014. Nevertheless, there remained an inconsistency in the child's testimony that was never resolved.
There was other evidence supporting a finding that R.W. was 10 years old when living at the apartment where sexual intercourse reportedly first occurred. The landlord's business records indicate defendant moved to the apartment in June 2013 and "terminated her apartment rental" by June 2, 2014. Defendant herself testified that she occupied the apartment from June 2013 to June 2014 and moved from the apartment at the start of July 2014. Defendant even admitted R.W. was 10 years old when they lived at the apartment.
It is not for the court, however, to weigh the evidence and resolve inconsistencies in witness testimony. It is a matter for a jury to decide. An instruction on a lesser included offense must be given where there is evidence from which a jury could reasonably conclude that the lesser offense, but not the greater, was committed. (People v. Nelson, supra, 1 Cal.5th at p. 538.)
Here, R.W.'s testimony that he was 11, not 10 years old, when sexual intercourse first occurred was sufficient evidence of his age to warrant instruction on the lesser offense. "Recent studies have undermined traditional notions regarding the unreliability of child witnesses, their untruthfulness, susceptibility to leading questions, or inability to recall prior events accurately." (People v. Jones (1990) 51 Cal.3d 294, 315.) "[I]t is now well established that a child's testimony cannot be deemed insubstantial merely because of his or her youth." (Ibid.) Just as R.W.'s testimony was sufficient to prove the molestation occurred as he described it, so too is his testimony sufficient to prove his age at the time of molestation.
4. The failure to instruct the jury on the lesser included offense was prejudicial.
The erroneous failure to instruct on a lesser included offense in a noncapital case is an error of state law subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, 836-837. (People v. Rogers (2006) 39 Cal.4th 826, 867-868.) "Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of." (Id. at p. 868.) " ' "The Supreme Court has emphasized 'that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." ' " (People v. Brown (2016) 245 Cal.App.4th 140, 155.)
Failure to instruct on statutory rape was prejudicial because it is reasonably probable at least one juror would have credited R.W.'s testimony that he was 11 years old when sexual intercourse occurred or found that his testimony raised a reasonable doubt as to his age. (See People v. Walker (2015) 237 Cal.App.4th 111, 118 [noting that " 'a hung jury is a more favorable result than a guilty verdict' "].) The Attorney General denies prejudice, arguing that the evidence overwhelmingly established that R.W. was age 10 when living at the Vacaville apartment. It is uncontested that R.W. was born in July 2003 and there is evidence R.W. moved from the apartment in June 2014, before his 11th birthday. But the jury was also presented with R.W.'s insistence that he was 11 years old, not 10 years old, when he lived at the apartment and sexual intercourse occurred. Defense counsel argued to the jury "this is not about math" but about witness reliability and the burden of proof. The prosecution cannot have it "both ways;" it cannot rely upon R.W.'s testimony to prove sexual intercourse while dismissing his testimony on age. Counsel also argued that R.W.'s testimony suggested sexual contact may not have occurred at the apartment at all but only after defendant and her sons moved into the house with Ricky. Counsel claimed "none of the abuse happened before [Ricky] got into the picture" and R.W.'s insistence that he was 11 years old at the time of the first sexual contact supported this claim.
The evidence and closing arguments presented a conflict for jury resolution but no avenue for another verdict had the jurors doubted the age of the victim when sexual intercourse first occurred. The prosecutor argued the jury's choice of verdict was "all or nothing. Either [defendant's] convicted of sexual intercourse with a child under age 10 or not." The only lesser offense offered as an alternative was battery, which the prosecutor strenuously argued was inapplicable under the facts: "She didn't slap him. She had sex with him." The lesser offense of statutory rape was not offered to the jury, so a juror believing sexual intercourse occurred but doubting the child's age was, as the prosecutor argued, forced into an all or nothing choice. Either convict defendant of sexual intercourse with a child under age 10 or acquit her. As noted earlier, a jury should not be forced to "to make an 'all or nothing' choice between conviction of the crime charged or complete acquittal, thereby denying the jury the opportunity to decide whether the defendant is guilty of a lesser included offense established by the evidence." (People v. Barton, supra, 12 Cal.4th at p. 196.) There is a reasonable probability the error affected the outcome of this case.
" 'When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense.' " (People v. Brown, supra, 12 Cal.4th at p. 156; People v. Hayes (2006) 142 Cal.App.4th 175, 184.) We shall provide that option here.
5. There was no prejudicial juror misconduct warranting a new trial.
Defendant contends she is entitled to a new trial on all charges, claiming juror misconduct. In a motion for new trial, defendant argued the jury foreperson failed to disclose on a juror questionnaire that she was not a resident of Solano County, which information would have disqualified her from service. The juror was registered to vote in Solano County but her driver's license listed a San Francisco address.
The trial court determined there was an insufficient showing of misconduct to warrant the release of the juror's personal contact information or an evidentiary hearing on the issue of residency and that any misconduct was not prejudicial. The lack of prejudice is dispositive.
Assuming for purposes of this appeal, without deciding, that the juror was not resident in Solano County at the time of defendant's trial and committed misconduct in misstating her county of residence on the juror questionnaire, there was no prejudice. "Juror misconduct generally raises a rebuttable presumption of prejudice, but '[a]ny presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.' " (In re Lucas (2004) 33 Cal.4th 682, 696.)
Defendant has not offered a single case in which a juror's misstatement of residency—whether inadvertent or intentional—has been found to constitute prejudicial misconduct. In an effort at analogy, defendant offers People v. Blackwell (1987) 191 Cal.App.3d 925, 931, where a juror in the murder trial of a wife claiming self-defense lied about her own experience with an abusive husband. On voir dire, the juror was "asked if she had experienced any domestic or spousal violence in her family, and . . . responded negatively. When asked how she and her husband resolved their differences, she said 'by either one out talking the other or someone going outside and sulking.' In response to a question about her husband's drinking habits, she stated that, 'He drinks occasionally.' Finally, when asked whether she had a 'preconceived position' toward this case involving 'battering or abuse,' she again answered, 'No.' " (Id. at p. 928) After trial, the juror revealed that "she was the victim of an abusive former husband who became physically violent when drinking and declared " '[since] I was personally able to get out of a similar situation without resorting to violence, I feel that if she had wanted to, [appellant] could have gotten out, as well.' " (Ibid.) The court reversed the judgement upon concluding the juror "deliberately concealed" material information "by giving false answers" and was affirmatively biased against the defendant. (Id. at pp. 930-931.) Blackwell bears no resemblance to the situation here. The juror's residence, whether in Solano or San Francisco, was not relevant to the issues in the case. There was no showing of bias and no likelihood that a juror living in San Francisco rather than Solano would be biased against defendant.
"The great weight of authority" has long held that the subsequent discovery of a juror's ineligibility to serve on a jury does not warrant a new trial. (Kohl v. Lehlback (1895) 160 U.S. 293, 301-303 [non-citizen]; Thompson v. Paige & O'Neal (1860) 16 Cal. 77, 77-79 [insufficient state residency]; Coleman v. Calderon (9th Cir. 1998) 150 F.3d 1105, 1117 [convicted felon], overruled on other grounds Calderon v. Coleman (1998) 525 U.S. 141.) A juror disqualification "defect is not fundamental as affecting the substantial rights of the accused, and the verdict is not void for want of power to render it." (Kohl, supra, at p. 302.)
6. Sentencing issues are mooted by our remand of the case to the trial court.
Defendant contends her life sentence imposed under counts 1 and 2 is cruel and unusual punishment and that the trial court abused its discretion in imposing a consecutive 16-year term on the count 3 continuous sexual abuse conviction. We need not address these issues as defendant shall be resentenced.
Disposition
The judgment as to count 3 (violation of section 288.5) is affirmed. The judgment as to counts 1 and 2 (violation of section 288.7, subdivision (a)) is conditionally reversed. If, after the filing of the remittitur in the trial court, the prosecutor does not retry defendant on the charged offense within the time limit of section 1382, subdivision (a)(2), the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect conviction of the lesser included offense of statutory rape in violation of section 261.5, subdivision (c) on counts 1 and 2 and shall resentence defendant accordingly.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P.J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------