Opinion
H050166
04-11-2024
THE PEOPLE, Plaintiff and Respondent, v. STEVEN IRVING WEISSMAN, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F25241
LIE, J.Defendant Steven Irving Weissman contends that the trial court improperly relied on his violation of Penal Code section 288(a) upon multiple victims both to (1) trigger two life sentences required by the One Strike law (§ 667.61); and (2) run those sentences consecutively. Even if we assume that the trial court erred, we conclude that because the court relied on other permissible factors when making its sentencing decision Weissman has not met his burden to demonstrate prejudice. Accordingly, we affirm.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
A. Convictions Upheld on Appeal
The parties drew their summaries of the facts underpinning the affirmed convictions from the detailed recitation set forth in the unpublished opinion resolving Weissman's initial appeal, People v. Weissman, (Feb. 26, 2021, H045863). Accordingly, we do the same. In addition, both parties cited to the record in the prior appeal in their briefing but neither requested judicial notice of that record. We take judicial notice of that record. (See People v. McCarthy (2016) 244 Cal.App.4th 1096, 1100, fn. 2.)
A jury found that [Weissman] had sexually molested six young boys over a period of more than 15 years. He was convicted of 12 counts of lewd acts on a child under 14 (§ 288, subd. (a)), one count of lewd act on a child of 14 or 15 (§ 288, subd. (c)), and one count of aggravated sexual assault on a child (§ 269, subd. (a)(4)), and the jury also found true a multiple victims allegation (§ 667.61, subds. (b), (c)(8), (e)(4)) as to the counts of lewd acts on a child under 14. The trial court sentenced Weissman to prison for 105 years eight months to life.
A different panel of this court ruled "that the prosecutor's prejudicial failure to correct false testimony require[d] reversal of nine of the counts" but "reject[ed] defendant's other claims and remand[ed] the matter with directions to give the prosecutor the option to either retry those counts or proceed to resentencing on the remaining five counts." The prosecutor elected the latter.
The five counts affirmed were "two counts based on defendant's act of forcing K.C. to orally copulate him, the two counts based on his touchings of T.B.'s penis, and [one] count based on [a] touching of J.K." Those counts were based on the following events.
In 1997 or 1998, while K.C. was in elementary school, Weissman invited K.C. to his home to play with his adopted son. At Weissman's home, Weissman took K.C. to his garage to show him his pet snakes. "After they had looked at the snakes for a while, defendant said to K.C.: 'I want to see your weiner.' Defendant unbuttoned and unzipped K.C.'s pants and pulled them down. Defendant then pulled down his own pants and pulled his penis and testicles out of his underwear. He told K.C. to open his mouth, and defendant forced his penis into K.C.'s mouth. K.C. tried to pull away, but defendant overcame his resistance and told him to 'suck it like a lollipop.' K.C. continued to resist, and he was able, after about 20 seconds, to push defendant away. Defendant told K.C. to pull up his pants, and he said 'that I was being a bad boy and not to tell anybody ....' "
In June 2013, "10-year-old T.B. came from a mental hospital to stay at defendant's house as a foster placement." T.B. slept in the guest bedroom. Before going to sleep, he closed the door and covered himself in blankets. Three or four times he awoke to find the door open or the blankets removed. One night, "while he was only partway asleep, he heard the door open and felt someone sit down on the foot of his bed and pull down his blankets. T.B. stretched his legs, and his leg hit another person's body. He then felt a person put a hand inside his underwear and start rubbing his penis. Although T.B. could not see the person's face in the dark, the only other person in the house was defendant. The rubbing continued for three or four minutes. T.B. was afraid to open his eyes, but he eventually opened his eyes and moved around, which caused the person to get up, look around the room, then leave." Another night, defendant entered T.B.'s room and looked around "before he sat down on T[.B.]'s bed. Defendant seemed to be mumbling, and, when he sat on the bed, 'it sounded like he was talking to someone,' though there was no one else in the room besides T.B. The touching of his penis was shorter the second time because T.B. moved around more quickly." Because his foster placement was changed, T.B. spent only 10 days living in Weissman's home.
Over a period of several years, J.K. spent "a lot of time at defendant's home" and came to see "defendant as 'like a father figure.'" "In early August 2013, the day before J.K.'s 14th birthday, defendant had some friends over to play poker. After the friends left, defendant was 'acting really weird to [J.K.]' and 'kind of creepy.' Defendant was not a big drinker, but that night he had had several alcoholic drinks. Defendant told J.K. to go to bed, and J.K. did so." J.K. was by that time on the lookout for" 'red flags'" " '[a]bout [Weissman] being a pedophile.'" Accordingly, "J.K. covered himself with a sheet and two blankets, but he stayed awake with his eyes closed to see 'what happens.' [¶] . . . J.K. was still awake but with his eyes closed when . . . defendant came into the bedroom, turned on the lights, then moved around the bedroom for a while. After doing so, he moved J.K.'s blanket down 'to just above waist level,' and moved J.K.'s arm off of his chest. Right after doing so, defendant got into the bed next to J.K., pulled a sheet up over himself, and started masturbating about a foot away from J.K. J.K. heard the sounds of defendant masturbating, looked over at defendant, and saw defendant staring at him. J.K. jumped out of the bed, pulled down the sheet, and saw defendant's partially erect penis protruding from his boxers. Defendant tried to cover himself with his hands. J.K. asked defendant what he was doing. Defendant denied doing anything, but he stood up and a used condom fell out of his hand. J.K. ran out of the house ...."
B. Resentencing and Present Appeal
Following remand, the trial court sentenced Weissman to prison for 30 years eight months to life, as follows: (1) 15 years to life on count 7 (violation of § 269, subd. (a)(4), for aggravated sexual assault upon K.C., who was under the age of 14); (2) 15 years to life on count 9 (violation of § 288, subd. (a), for a lewd act upon K.C., who was under the age of 14), stayed pursuant to section 654; (3) 15 years to life on count 12 (violation of § 288, subd. (a), for a lewd act upon T.B., who was under the age of 14), to run consecutively with the sentence in count 7; (4) 15 years to life on count 13 (violation of § 288, subd. (a), for a lewd act upon T.B., who was under the age of 14), to run concurrently; and (5) eight months on count 5 (violation of § 288, subd. (c)(1), for a lewd act upon J.K., at the age of 14 or 15), to run consecutively.
Rejecting the prosecution's request to impose a sentence of 60 years eight months to life, the court explained: "If I'm remaining consistent with my view on this case from the previous sentence, which was basically seven victims, various counts, seven times 15 was 105 - and that's how we reached that sentence - we now have two victims who have the 15-to-life dynamic, and we have a third victim who has a determinat[]e sentence."
Rejecting Weissman's request to impose a sentence of 15 years eight months to life, the court explained: "We do have multiple victims. We all know of the circumstances that led to the guilty verdicts. I did evaluate the efforts that Mr. Weissman has been involved with over the past six years. I did take note of the report from the psychologist, the Static-99R, the fact that Mr. Weissman has had no problems in custody, that he does have support from the community. I'm obviously well aware that we've adjusted the number of victims for sentencing purposes from seven to three. But if I'm being consistent regarding the [section] 654 and the running [count 13] concurrently, I feel I should be consistent as to [count 7] at 15 years to life and [count 12] at 15 years to life, with [count 5] being one-third the mid-term ...."
The trial court entered judgment on June 16, 2022, crediting Weissman with 2,446 days for time served. Weissman timely appealed.
II. DISCUSSION
A. Standard of Review
"It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively." (People v. Bradford (1976) 17 Cal.3d 8, 20.) We review the trial court's sentencing decision for abuse of discretion. (Ibid.) "The 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. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted; see also People v. Carmony (2004) 33 Cal.4th 367, 378 [in context of request to strike prior felony allegation, an abuse of discretion occurs where the court considers impermissible factors in declining to dismiss].)
In cases of ordinary nonstructural state law error, courts "evaluate whether the defendant has demonstrated that it is' "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error" '" under People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Gonzalez (2018) 5 Cal.5th 186, 195; see also People v. Penunuri (2018) 5 Cal.5th 126, 169.) Under Watson, a trial court's consideration of an impermissible factor among multiple factors for a discretionary decision is not prejudicial unless it is reasonably probable that a more favorable sentence would otherwise have been imposed. (See People v. Avalos (1984) 37 Cal.3d 216, 233 (Avalos) [applying Watson to "improper dual use of facts"]; see also People v. Price (1991) 1 Cal.4th 324, 492 (Price); In re F.M. (2023) 14 Cal.5th 701, 714-715.) Under Avalos and Price, the Watson standard applies where the trial court considered improper sentencing factors under an unchanged sentencing scheme. (People v. Falcon (2023) 92 Cal.App.5th 911, 950-951 [distinguishing Avalos and Price because Sen. Bill No. 567 (2021-2022 Reg. Sess.) became law during pendency of appeal], review granted Sept. 13, 2023, S281242 (Falcon).)
Weissman argues that we should look not to Watson, but use the standard applicable where "a sentencing court [is] not fully aware of the scope of its discretionary powers." (See People v. Salazar (2023) 15 Cal.5th 416, 425 (Salazar).) Under People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez), the appropriate remedy in such cases" 'is to remand for resentencing unless the record "clearly indicate[s]" that the trial court would have reached the same conclusion "even if it had been aware" '" of the scope of its discretion. (Salazar, supra, 15 Cal.5th at p. 425.)
As in Avalos, we will apply the Watson standard. Where, as here, the sentencing scheme has not changed in the interim, the "sentencing court revealed its sentencing choice . . . and the reviewing court decide[s] whether there [i]s a reasonable probability the court's lawful exercise of its discretion on remand would lead it to make a different choice under the same sentencing framework." (Falcon, supra, 92 Cal.App.5th at p. 950, review granted, fn. omitted.)
Gutierrez addresses a different problem. If the sentencing scheme has changed, an attempt to apply the Watson standard would require" 'the reviewing court to decide what choice the trial court is likely to make in the first instance, not whether the court is likely to repeat a choice it already made.'" (Falcon, supra, 92 Cal.App.5th at p. 950, review granted.) The Gutierrez test "avoid[s] unnecessary speculation about what a sentencing court would do in the exercise of its informed discretion in the first instance." (Falcon, supra, 92 Cal.App.5th at p. 951, review granted; see also Salazar, supra, 15 Cal.5th at pp. 426-428 [applying Gutierrez in the context of a changed statutory scheme].)
We reject Weissman's contention that we should apply the Gutierrez test because the Attorney General conceded the standard at oral argument. We are not bound by a party's concession on a question of law. (See, e.g., People v. Vivar (2021) 11 Cal.5th 510, 524 (Vivar); Tun v. Wells Fargo Dealer Services, Inc. (2016) 5 Cal.App.5th 309, 327.)
Neither party expressly addressed prejudice before oral argument, although their briefs implied a dispute on the issue. We reject Weissman's contention that the Attorney General conceded prejudice by not addressing prejudice in his brief. Weissman-who as the appellant bears the burden of establishing reversible error (see, e.g., Jameson v. Desta (2018) 5 Cal.5th 594, 608-609)-never acknowledged his obligation to demonstrate prejudice (under any standard) nor analyzed prejudice in his opening brief. Instead Weissman asserted that a dually used factor was the "sole" basis for the trial court's sentencing decision. Weissman having addressed only error, the Attorney General responded in kind, arguing that the trial court properly based its decision to run the sentences consecutively on factors other than the existence of multiple victims-the different acts on different occasions against different victims. To the limited extent that Weissman's argument could be construed to imply that any reliance on multiple victims was per se prejudicial, the Attorney General's argument to the same extent implies that it was not.
It was not until two court days before oral argument, in response to our focus letter inviting the parties to address the Watson standard, that Weissman filed a new authority letter citing Salazar. This was Weissman's first indication that he might dispute application of the Watson standard, and at oral argument he asserted that the Gutierrez standard applied instead. It was in this context that the Attorney General conceded application of the Gutierrez standard but argued Gutierrez was satisfied in this case. We thereafter requested supplemental briefing on issues including Falcon and the proper standard of prejudice.
The Attorney General tacitly sought to retract his oral argument concession by arguing that Watson controlled. Weissman, in contrast, offered no substantive response to Falcon that would support application of the Gutierrez standard, offering instead only insistence that the Attorney General be bound to his improvident concession at oral argument. But we cannot apply the wrong legal standard to sanction a respondent for a litigation fumble. (Cf. Vivar, supra, 11 Cal.5th at p. 524 [accepting Attorney General's concession regarding legal standard only after "careful review" of its merit].) Having afforded Weissman a full opportunity to meet his burden on appeal to justify application in this case of the Gutierrez standard as a pure question of law, we are unable to resolve the question in his favor.
B. The One Strike Law
"The purpose of the One Strike law is to provide life sentences for aggravated sex offenders, even if they do not have prior convictions." (People v. Acosta (2002) 29 Cal.4th 105, 127.) Subject to statutory exceptions, "a person who is convicted of an offense specified in subdivision (c) [of section 667.61] under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life." (§ 667.61, subd. (b).) Among the offenses specified in subdivision (c) is "[l]ewd or lascivious act, in violation of subdivision (a) of [s]ection 288." (§ 667.61, subd. (c)(8).) Among the circumstances specified in subdivision (e) is: "The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim." (§ 667.61, subd. (e)(4).)
Under section 667.61, "[i]f only the minimum number of circumstances . . . required for the [greatest] punishment provided in subdivision[s] (a), (b), (j), (1), or (m) to apply have been pled and proved, . . . those circumstances shall be used as the basis for imposing . . . [that] punishment . . . unless another law provides for a greater penalty or the punishment under another law can be imposed in addition to the punishment provided by this section." (§ 667.61, subd. (f).)
The default sentence for a violation of section 288, subdivision (a), is "imprisonment in the state prison for three, six, or eight years." In this case, because Weissman was convicted of violations of subdivision (a) against two victims, the sentence for each conviction was 15 years to life. (§ 667.61, subds. (b), (c)(8), (e)(4).)
C. Consecutive Sentences
When imposing a sentence pursuant to section 667.61 for multiple violations of section 288, subdivision (a), a trial court has discretion to choose between concurrent and consecutive terms. (People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1261-1263 (Rodriguez); People v. Valdez (2011) 193 Cal.App.4th 1515, 1524; People v. Lopez (2022) 76 Cal.App.5th 287, 291-292 (Lopez); compare § 667.61, subd. (c)(8); with § 667.61, subds. (i), (n); see also People v. Catarino (2023) 14 Cal.5th 748, 755 [holding that"' "the Sixth Amendment's restriction on judge-found facts" is "inapplicable" when a trial judge makes factual findings necessary to the imposition of consecutive terms' "].) If a trial court imposes consecutive terms, it is required to state its reasons for doing so. (See Lopez, supra, 76 Cal.App.5th at p. 294; People v. McInnis (2021) 63 Cal.App.5th 853, 865; Cal. Rules of Court, rule 4.406(b)(4).) "Only one criterion or factor in aggravation is necessary to support a consecutive sentence." (People v. Davis (1995) 10 Cal.4th 463, 552 (Davis); see also People v. King (2010) 183 Cal.App.4th 1281, 1323.)
Undesignated references to rules are to the California Rules of Court.
Rule 4.425 currently provides: "Factors affecting the decision to impose consecutive rather than concurrent sentences include: [¶] (a) Facts relating to crimes [¶] Facts relating to the crimes, including whether or not: [¶] (1) The crimes and their objectives were predominantly independent of each other; [¶] (2) The crimes involved separate acts of violence or threats of violence; or [¶] (3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. [¶] (b) Other facts and limitations [¶] Any circumstances in aggravation or mitigation, whether or not the factors have been stipulated to by the defendant or found true beyond a reasonable doubt at trial by a jury or the judge in a court trial, may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant's sentence in prison or county jail under section 1170[, subdivision] (h); and [¶] (3) A fact that is an element of the crime."
A prior version of what is now rule 4.425(b)(2) prohibited consideration of" 'a fact used to otherwise enhance the defendant's prison sentence.'" (Rodriguez, supra 130 Cal.App.4th at p. 1263; see also People v. Black (2005) 35 Cal.4th 1238, 1262, judg. vacated and cause remanded for further consideration in light of Cunningham v. California (2007) 549 U.S. 270, sub nom. Black v. California (2007) 549 U.S. 1190.)
D. Double Use and Prejudice
Weissman contends that the trial court ran afoul of rule 4.425(b)(2)-(3) by relying on "the fact of two [section 288, subdivision (a)] victims" both as an element of the section 667.61 "enhancement" and as "the sole reason to run the two . . . sentences consecutively." In his supplemental briefing, Weissman contends that the trial court's error was prejudicial under Watson precisely because the only factor the trial court relied on was the fact of multiple victims. The record belies Weissman's contention that the number of victims was the "sole reason" the trial court imposed consecutive sentences. To the extent the trial court improperly relied in part on the two section 288, subdivision (a) victims, Weissman has not demonstrated a reasonable probability that he would have received a lesser sentence absent the trial court's reliance on that factor.
At the original sentencing hearing, the trial court imposed a sentence it deemed appropriate "under all of the circumstances taking into account the number of victims, taking into account [rule] 4.425(a)(1), taking into account Penal Code [s]ection 667.61. I sat through the entire trial. I watched individuals as they testified. I also was aware of the individuals who came to offer support to Mr. Weissman on a daily basis during the trial.... There is no particular joy that I have in imposing this sentence, but . . . when I'm taking into account the discretion[] . . . that I have as to whether sentences are run consecutively or concurrently I go back to the fact that there were separate and distinct incidents involving several different people." (Italics added.) In earlier comments at the hearing, the trial court explained that it was focusing on the multiple victims factor in imposing its sentence to respect each victim's "position as separate and distinct victims of these crimes." The trial court considered rule 4.425(a)(2)-(3) in fixing the sentence but declined to impose the longer sentence sought by the prosecution based on those factors. Instead, the trial court grouped the sentences by victim-imposing concurrent sentences as to offenses committed against a given victim even where they occurred in separate transactions or occurrences, yet imposing consecutive sentences as between these victim-specific groupings of discrete offenses. Thus, the trial court treated the identity of the victims as an organizing principle-a proxy for the factors available under rule 4.425(a)-in balancing the parties' competing sentencing proposals.
At resentencing, the trial court noted a desire to remain "consistent with [its] view on this case from the previous sentence." In that context, the trial court explained that it had "a good faith disagreement with the defense" about sentencing Weissman to "15 [years] versus 30 [years]. We do have multiple victims. We all know of the circumstances that led to the guilty verdicts." The court acknowledged the existence of mitigating factors but explained that running two of the life sentences consecutively was "consistent" with its prior determination "adjust[ing] the number of victims for sentencing purposes from seven to three."
Considering the trial court's stated reasons in context, we see no basis for Weissman's contention that the trial court's sole reason for imposing consecutive sentences was the fact that Weissman was "convicted in the present case . . . of committing" a violation of section 288, subdivision (a) "against more than one victim." (§ 667.61, subd. (e)(4).) The trial court focused on the "separate and distinct" nature of Weissman's crimes-noting these constituted "separate and distinct incidents" against "separate and distinct victims." While this focus includes in part the fact of multiple section 288, subdivision (a) victims, it also extends to a consideration of each of the other rule 4.425(a) factors supporting consecutive sentencing independent of the bare number of victims. In particular, it invokes the facts that the crimes were separate sexual assaults, committed over a decade apart, such that the multiple crimes and their objectives were predominantly independent of each other.
Having asserted that the allegedly improper consideration was the trial court's sole reason for acting, Weissman does not challenge the sufficiency of the trial court's other stated reasons for imposing consecutive sentences. (See rule 4.406(a), (b)(4) [requiring a sentencing judge imposing consecutive sentences to "state in simple language the primary factor or factors that support the exercise of discretion"]; see also Davis, supra, 10 Cal.4th at pp. 551-552.)
Although we assume that the trial court's consideration of the number of victims among the factors supporting consecutive sentences was an error, remand for resentencing is proper only" 'if "it is reasonably probable that a result more favorable to [Weissman] would have been reached in the absence of the error" '" or we "cannot determine whether the improper factor was determinative for the sentencing court." (Avalos, supra, 37 Cal.3d at p. 233; see also Price, supra, 1 Cal.4th at p. 492.)
In Avalos, "there was improper dual use of facts" because "[t]he [trial] court used both the factor of multiple victims and of the aggravated nature of the violence to impose both the aggravated and consecutive terms" upon a defendant following a "shooting spree." (Avalos, supra, 37 Cal.3d at p. 233.) But the trial court's remarks indicating the strength of its belief that the crime was particularly and wantonly violent and that it was particularly troubled by the defendant's criminal history, and the existence of aggravating factors for weapon use, made it "seem[] clear that the improper dual use of facts was not determinative." (Ibid.)
Here, focusing on the crimes against K.C.-one instance of forced oral copulation in 1997 or 1998-and against T.B.-twice touching T.B.'s penis during a 10-day period in 2013-the trial court adopted a middle-ground position between both parties' proposals. It imposed concurrent sentences for the two crimes visited upon T.B., but a consecutive sentence for the crime against K.C. We are satisfied that the court's basis for adopting the middle-ground position was its decision to cluster the offenses into separate and distinct events. It is not reasonably probable that removing the identity of the victims from the mix would have generated a result more favorable to Weissman because there remains a clear factual basis to group the offenses into two predominantly independent crimes. (See rule 4.425(a)(1) [factors affecting concurrent or consecutive sentences include the independence of the crimes and their objectives].)
The crime against K.C. and the crimes against T.B. constituted "separate and distinct events" more than a decade apart. The crimes in the two distinct time periods were accomplished by different methods, constituting "separate acts of violence" that were so far apart in time to indicate that the crimes were not part of a "single period of aberrant behavior." (Rule 4.425(a)(2)-(3).) While the trial court invoked the identities of the victims as the primary basis for clustering the three events into two groups, this result was supported by the trial court's invocation of "the circumstances that led to the guilty verdicts" at resentencing and its more particularized discussion of rule 4.425(a)(1) in the original sentencing analysis it invoked at resentencing.
For the first time at oral argument, Weissman asserted that a court may not impose consecutive life sentences for the crimes against K.C. and T.B. because they are the only two victims that trigger section 667.61, subdivision (e)(4). Weissman did not support this argument with authority or revisit the argument in his supplemental briefing on prejudice. There is no reason that criteria supporting the discretionary determination to impose consecutive sentences will as a matter of law be lacking in such cases. (See Rodriguez, supra, 130 Cal.App.4th at pp. 1261-1263 [discussing exercise of discretion to impose concurrent or consecutive one strike].) Accordingly, we decline Weissman's unsupported invitation to announce a categorical exception to the trial courts' discretion to impose consecutive sentences.
We disagree with Weissman's assertion that the court's recitation of "numerous mitigating factors" supports the conclusion that a more favorable result is likely if the matter is remanded. The fact that the court considered mitigating factors but declined to impose a sentence shorter than the one it selected-which fell between the parties' proposals-indicates that the court is not reasonably likely to reach a different result based on the same factors, if the matter is remanded.
If the trial court were not permitted to use the identity of the victims as an organizing principle, the timing and nature of the offenses strongly support treating the crimes against K.C. and T.B. as distinct acts of violence in distinct periods of aberrant behavior. The trial court found "that there were separate and distinct incidents involving several different people" in support of its initial sentencing decision, and invoked its original sentencing decision in support of its second sentencing decision. It is not reasonably probable that, had the trial court ignored the fact that the offenses that triggered section 667.61 were perpetrated against two different victims, the trial court would have reached a result more favorable to Weissman.
III. DISPOSITION
We affirm the judgment.
WE CONCUR: GREENWOOD, P.J., GROVER, J.