P. v. Roberts

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Filed 3/15/21 P. v. Roberts CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID LEE ROBERTS,
Defendant and Appellant.
E074745
(Super.Ct.No. RIF078601)
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C.
Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

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In 2000, a jury convicted defendant David Lee Roberts of first degree murder on a
felony murder theory and found true a robbery-murder special circumstance allegation.
The trial court sentenced him to life without the possibility of parole (LWOP) for the
murder. On appeal, this court expressly rejected defendant’s claim that insufficient
evidence supported the special circumstance finding.
Nineteen years later, defendant petitioned the superior court under the recently
enacted Penal Code section 1170.951 to vacate his murder conviction and to resentence
him. He argued the jury’s robbery-murder special circumstance finding was no longer
valid under recent decisions of the California Supreme Court and related statutory
amendments, and that he could not be convicted today of felony murder. The superior
court ruled the jury’s special circumstance finding barred him from obtaining relief under
section 1170.95 and summarily denied his petition.
Recently, in People v. Jones (2020) 56 Cal.App.5th 474 (Jones), review granted
January 27, 2021, S265854, this court held defendants with undisturbed and final special
circumstance findings are barred as a matter of law from petitioning for relief under
section 1170.95. Instead, defendants such as the defendant in this case must petition an
appropriate court for a writ of habeas corpus and challenge the continued validity of the
jury’s finding in that proceeding. The holding in Jones, that we decline to revisit here,
dictates that we affirm the denial of defendant’s petition.
1 All further statutory references are to the Penal Code unless otherwise indicated.

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I.
FACTS
We take the facts of the underlying crime from our prior unpublished decision in
defendant’s direct appeal (People v. Roberts (Oct. 12, 2001, E027424) [nonpub. opn.]),
of which we take judicial notice. (Evid. Code, §§ 452, subd. (a), 459, subd. (a); see
People v. Allison (2020) 55 Cal.App.5th 449, 454 & fn. 3.)
“On the evening of November 19, 1997, [codefendant] Johnson and [defendant]
left the apartment of [J.T.],[2] [defendant’s] sister-in-law, and went together to the nearby
apartment of drug dealer, [J.P.], to rob [him] of three ounces of methamphetamine.
Before the two men left her residence, where they had been discussing the planned theft,
[J.T.] gave Johnson a sweater to use to conceal his gun, a .38-caliber revolver. Johnson
knew where [J.P.] stored his merchandise because Johnson’s girlfriend, [C.B.],
sometimes worked for [J.P.] selling drugs. [C.B.] had introduced Johnson to [J.P.], and
she and Johnson had seen [J.P.] take methamphetamine from a bag in his kitchen
cupboard. Johnson also knew that [J.P.] had once asked [C.B.] to orally copulate him.
When [C.B.] told Johnson about that incident, she also told him that it was all a joke, and
that she did not perform the requested service.
“When Johnson and [defendant] arrived at [J.P.’s] apartment, they looked in
through a window and saw him smoking methamphetamine with one of his regular
2 We have omitted the full names of victims and witnesses. (See Cal. Rules of
Court, rule 8.90(b)(4), (11); Cal. Style Manual (4th ed. 2000) § 5:9, pp. 179-180, § 5:12,
p. 181.)

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customers, [K.W.] [J.P.] had taken the rock the two were smoking from a cigarette pack
lying on a coffee table. Johnson knocked on the door; [defendant] stayed outside
observing through the window. At [J.P.’s] direction, [K.W.] answered Johnson’s knock.
Johnson entered the apartment and offered [J.P.] money in an apparent attempt to make a
purchase. [J.P.] said Johnson would have to wait a few minutes, inferring, as Johnson
apparently understood it, that he did not have the drugs in his apartment or did not want
to make the exchange there. As Johnson and [J.P.] sat talking, [defendant] became
impatient and went to the door. [K.W.] heard the doorknob ‘jiggling’ and told [J.P.] she
thought someone was attempting to enter. When [J.P.] got up to answer the door,
Johnson followed him.
“[J.P.] did not recognize the person at the door, turned back to Johnson, and asked,
‘Who’s this?’ Johnson walked past [J.P.], briefly put his head outside, then turned
around and said, ‘Check it out, dude. You want to tell my old lady to suck your dick.’
Johnson then shot [J.P.] three times. As the shooting began, [K.W.] saw a second male
appear at the door. At the second shot, [K.W.] grabbed the portable telephone from the
coffee table and ran to the bathroom. As she fled, she heard more shots, for a total of five
or six. When she closed the bathroom door, the mirror shattered. [K.W.] fell to the floor,
held the door shut with her feet, and called 911. For a short time after the shooting
stopped, she heard the kitchen cupboards being opened and closed.
“When [K.W.] emerged from the bathroom, [J.P.] was lying on the kitchen floor in
front of the sink. Johnson, the second male, and the pack of cigarettes containing the
methamphetamine were all gone. Police found three bullet holes in the bathroom door, a

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bullet fragment near the front door, and a bullet hole projected through a pillow into the
wall behind the sofa. Two bullets were recovered from [J.P.’s] body at the autopsy.
“[Defendant] and Johnson arrived back at [J.T.’s] apartment in a state of
excitement within about [10] minutes after they had left it. [Defendant] arrived before
Johnson. Both defendants were nervous, cursing, and upset. They had found no drugs.
Johnson indicated to [J.T.], by gesture and with words, that he had shot [J.P.] Johnson
left [J.T.’s] apartment about daylight. At home, he shook [C.B.] awake and told her that
he had just shot [J.T.] and had to leave. He warned [C.B.] that the police would be
arriving and told her to deny knowing him. When [C.B.] asked why Johnson shot [J.T.],
he ‘said something about the sexual remarks that [J.T.] made to [C.B.]’ Over the next
few days, Johnson repeatedly came to [J.T.’s] apartment and warned her, and told her to
warn [defendant] not to ‘talk.’ A friend of Johnson’s, [S.S.], assaulted [J.T.], indicating
as he did so that the beating was because her brother-in-law, [defendant], was ‘talking.’
Three to four weeks after the shooting, [defendant] moved away from [J.T.’s] apartment.
Johnson was arrested in February 1998 in Riverside. [Defendant] was arrested in
Colorado in April 1998.” (People v. Roberts, supra, E027424.)
II.
PROCEDURAL HISTORY
A. Defendant’s Trial, Convictions, and Sentence.
The prosecutor tried defendant on a felony-murder, aider and abettor theory.
Hence, the trial court appropriately instructed the jury with modified CALJIC Nos. 8.10,
8.21, and 8.27 for count 1.

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Relevant here, the trial court instructed the jury with a modified CALJIC
No. 8.80.1 that the robbery-murder special circumstance allegation required the
prosecutor to prove beyond a reasonable doubt that defendant, who did not actually kill
J.P., either (1) shared Johnson’s “intent to kill” and aided and abetted in committing the
first degree murder, or (2) acted “with reckless indifference to human life as a major
participant” and aided and abetted Johnson in the commission of the robbery, which
resulted in J.P.’s death.3 The instruction explained that a defendant acts with “reckless
indifference to human life” when he “knows or is aware that his acts involve a great risk
of death to innocent human beings.” In addition, the trial court granted defendant’s
request for a pinpoint instruction on the meaning of “‘major participant.’” The court
3 In its entirety, CALJIC No. 8.80.1 was read to the jury, by the trial court, as
follows: “If you find the defendant in this case guilty of murder of the first degree, you
must determine if the following special circumstance is true or not true: murder in the
commission of a robbery or attempted robbery.
“The People have the burden of proving the truth of this circumstance. If you
have a reasonable doubt as to whether the special circumstance is true, you must find it
not true.
“If you find that a defendant was not the actual killer of a human being, you
cannot find the special circumstance to be true unless you are satisfied beyond a
reasonable doubt that such defendant, with the intent to kill, aided, abetted, counseled or
assisted any act or—in the commission of murder in the first degree, or with reckless
indifference to human life as a major participant, aided, abetted, counseled, or assisted in
the commission of the crime of attempted robbery or robbery, which resulted in the death
of a human being, [J.P.]
“A defendant acts with reckless indifference to human life when that defendant
knows or is aware that his acts involve a great risk of death to innocent human beings. In
order to find a special circumstance alleged in this case to be true or untrue, you must
agree unanimously. You will state that special finding as to whether this special
circumstance is true or not true on a form that will be supplied.”

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instructed the jury that a “major participant is one whose role is notable, one of
importance, not trivial in nature.”
The jury convicted defendant of first degree murder (§ 187, count 1) and
attempted murder (§§ 664, 187, count 2), and found true the robbery-murder special
circumstance allegation (§ 190.2, subd. (a)(17)(A)) and allegations that defendant was a
principal and was armed with a handgun during the commission of the murder and
attempted murder (former § 12022, subd. (a)(1)). (People v. Roberts, supra, E027424.)
The trial court sentenced defendant to LWOP for the special circumstance murder;
a concurrent sentence of life with the possibility of parole for the attempted murder
conviction; and one year each for the two firearm enhancement findings, which were
stayed pursuant to section 654. (Ibid.)
B. Defendant’s Direct Appeal—People v. Roberts, supra, E027424.
On appeal, defendant argued, inter alia, substantial evidence did not support the
jury’s true finding on the robbery special circumstance allegation. (People v. Roberts,
supra, E027424.) This court noted: “[A] finding of special circumstance robbery-murder
as an aider and abettor must be based on evidence not only that the murder was
committed in the course of and in furtherance of a robbery, but that he shared the killer’s
intent or that he acted as [a] major participant and with reckless indifference to human
life.” (Ibid.) We held the record contained substantial evidence from which a jury could
find beyond a reasonable doubt that defendant aided and abetted Johnson and shared
Johnson’s intent to kill J.P., and that he was a major participant in the robbery who acted
with reckless indifference to human life. (Ibid.)

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With respect to sharing Johnson’s intent to kill, we stated: “There was plenty of
evidence here that [defendant] shared Johnson’s intent to rob the victim. Knowing of
Johnson’s intent to take [J.P.’s] methamphetamine, [defendant] voluntarily accompanied
him (twice) to the victim’s house, anxious to get his ‘half of whatever.’ And there was
evidence that [defendant] shared Johnson’s intent to kill if necessary to further the
robbery. [Defendant] knew Johnson was armed and angry; he watched the progression of
events through the victim’s window; and, when things seemed to be ‘taking to[o] long,’
he went to the door to find out ‘what the hell [was] going on.’” (People v. Roberts,
supra, E027424.)
As for defendant having been a major participant in the robbery, we stated:
“[Defendant] did not merely stand at the door while someone else committed a crime. He
was a major participant. He planned the crime with Johnson before they went (twice) to
the apartment. He knew of Johnson’s dual intent—to rob [J.P.] and possibly to satisfy a
personal grudge. He knew Johnson had a gun: he saw it at least when Johnson showed it
to him and said, ‘Look what I got,’ just before he entered [J.P.’s] apartment, and possibly
even before they left [J.T.’s] apartment. [Defendant] watched what was going on inside
from the window. He went to the door, knocked or jiggled the handle, and asked Johnson
what the hell was going on when he decided they were doing too much talking and things
were taking too long.” (People v. Roberts, supra, E027424.)
And, finally, we concluded the evidence demonstrated defendant acted with
reckless indifference to human life. “He was clearly ‘subjectively aware that his or her
participation in the felony involved a grave risk of death.’ [Citations.] [Defendant]

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admitted that when Johnson showed him the gun he told him he was going to use it to
intimidate the victim and ‘to make [him] give him his shit.’ In fact, [defendant] said, it
was his realization that Johnson intended to use the gun that made him ([defendant]) want
to back out: ‘Well I don’t want know [sic] part of that.’ This well-expressed fear
demonstrated his awareness that his participation in the robbery involved the grave risk
of death to the victims. Nonetheless, in reckless indifference to their fate, he followed
Johnson’s instruction to ‘wait right here.’ Not only that, he hurried Johnson along with
their joint project by going to the door and jiggling the handle.” (People v. Roberts,
supra, E027424.)
In summary, we held “[t]he jury could reasonably find from the evidence that
[defendant] was a major participant in the robbery, had a subjective awareness of the
extreme likelihood that [J.P.] could be killed, and acted with reckless indifference to
whether the victim lived or died.”4 (People v. Roberts, supra, E027424.)
C. Defendant’s Petition for Resentencing Under Section 1170.95.
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended
sections 188 and 189 (Stats. 2018, ch. 1015, §§ 2, 3) to limit the application of the felony-
murder rule and the crime of murder under the natural and probable consequences
doctrine to persons who: (1) are the actual killer; (2) are not the actual killer, but who
share the killer’s intent to kill, and aid and abet in the killing; or (3) are a major
participant in a felony and who act with reckless indifference to human life. (§§ 188,
4 The California Supreme Court denied defendant’s petition for review. (See
People v. Roberts, review denied Jan. 3, 2002, S102056.)

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subd. (a)(3), 189, subd. (e)(1)-(3).) In addition, Senate Bill No. 1437 enacted section
1170.95 (Stats. 2018, ch. 1015, § 4), which permits persons previously convicted of first
or second degree murder under the felony-murder rule or the natural and probable
consequences doctrine, but who could not be so convicted under the amendments to
sections 188 and 189 made by Senate Bill No. 1437, to petition the superior court to
vacate their murder convictions and to resentence them on any remaining counts.
In March 2019, defendant filed the instant petition in the superior court. Using a
check-box form, defendant alleged he was convicted of first degree murder “pursuant to
the felony murder or the natural and probable consequence doctrine,” but he could no
longer be convicted under those theories. The district attorney opposed the petition,
contending Senate Bill No. 1437 was unconstitutional.5 In the alternative, the prosecutor
argued defendant could not make a prima facie case for relief under section 1170.95
because the record demonstrated he had been convicted of first degree murder with a true
finding on the robbery-murder special circumstance. Therefore, the jury had found
beyond a reasonable doubt that he had the intent to kill, or was a major participant in the
robbery, and acted with reckless indifference to human life.
During the hearing on the petition, the superior court addressed this court’s
decision in defendant’s direct appeal. The court acknowledged we had concluded the
evidence supported a finding that defendant shared Johnson’s intent to kill for purposes
5 This court has since rejected the same arguments made by the prosecutor in this
case and concluded Senate Bill No. 1437 is constitutional. (People v. Johns (2020)
50 Cal.App.5th 46; People v. Lippert (2020) 53 Cal.App.5th 304.)

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of the robbery-murder special circumstance (a portion of the opinion the trial court
described as “odd”), but stated the “[m]ore important” section of the opinion was the one
addressing evidence that defendant was a major participant who acted with reckless
indifference to human life. After quoting the relevant pages, the court stated: “For the
reasons stated in this case and others, the defendant has had all that the law requires. He
has had the finder of fact determine beyond a reasonable doubt that he was a major
participant, acting with a reckless indifference to human life, or that he harbored a
specific intent to kill.” The court noted the jury’s findings had been “reviewed” and
“approved” on appeal. Therefore, it summarily denied defendant’s petition.
III.
DISCUSSION
As stated, ante, Senate Bill No. 1437 enacted section 1170.95 to provide relief to
defendants who had previously been convicted by plea or after trial of first or second
degree murder under the felony-murder rule or under the natural and probable
consequences doctrine, but who could not be so convicted because of the amendments
made to sections 188 and 189. (§ 1170.95, subds. (a)-(b).)
Upon receiving such a petition, “The court shall review the petition and determine
if the petitioner has made a prima facie showing that the petitioner falls within the
provisions of this section.” (§ 1170.95, subd. (c).) If, after having received a response
from the prosecutor and any reply from the petitioner, the superior court concludes a
prima facie showing has been made, “the court shall issue an order to show cause” and
conduct a hearing “to determine whether to vacate the murder conviction . . . .” (Id.,

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subds. (c), (d)(1).) If the record of conviction contains an express finding by a court or
jury that the defendant “did not act with reckless indifference to human life or was not a
major participant in the felony,” the superior court must vacate the conviction and
resentence the defendant. (Id., subd. (d)(2).) Otherwise, the prosecutor has the burden of
proving beyond a reasonable doubt that the defendant is ineligible for relief, and both the
prosecutor and the defendant “may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (Id., subd. (d)(3).) And, if the
prosecutor fails to meet his or her burden of proof, the superior court shall vacate the
murder conviction and resentence the defendant on any remaining charges. (Ibid.)
Defendant argues he is entitled to relief under section 1170.95, and the superior
court erred by finding he had not made a prima facie showing for such relief because his
first degree murder conviction, and the jury’s robbery-murder special circumstance
finding, occurred before our Supreme Court issued its decisions in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). Those
decisions “clarified the meaning of the special circumstances statute” (In re Scoggins
(2020) 9 Cal.5th 667, 671), specifically, the requirement under section 190.2,
subdivision (d), that a defendant who is “‘not the actual killer’” and is convicted of first
degree murder is eligible for the sentence of death or LWOP only if the jury finds he
acted with reckless indifference to human life and was a major participant in the
commission of the underlying felony, which resulted in the death. (Scoggins, at p. 671.)
This court recently addressed a petition filed by a similarly situated defendant. In
Jones, supra, 56 Cal.App.5th 474, the defendant was convicted of first degree murder and

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attempted murder, the jury found true the robbery-murder special circumstance and that
he personally used a firearm, and the trial court sentenced him to LWOP and life with the
possibility of parole. (Jones, at pp. 479-480.) As in this case, Jones filed a petition for
resentencing shortly after section 1170.95 went into effect; the prosecutor argued Senate
Bill No. 1437 was unconstitutional and, in the alternative, that Jones was not entitled to
relief because of the jury’s true finding that he was a major participant in the robbery and
acted with reckless disregard to human life. The superior court—after reviewing the
instructions given at Jones’s trial and verifying the jury had been informed it could find
true the robbery-murder special circumstance only if it concluded he was a major
participant who acted with reckless indifference to human life—summarily denied the
petition without conducting an evidentiary hearing. (Jones, at pp. 479-480.)
On appeal, Jones argued the jury’s robbery-murder special circumstance finding
was invalid in light of Banks and Clark, those decisions constituted changes in the law
since his conviction and sentencing, and the superior court erred by summarily denying
his petition. (Jones, supra, 56 Cal.App.5th at p. 480.) We agreed with the prosecutor
“that the procedure established in section 1170.95 ‘is not a “plenary proceeding” at which
the defendant can reopen matters which have already been adjudicated’—such as prior
jury findings.” (Jones, at p. 480; see id. at p. 492 (conc. opn. of Menetrez, J.) [agreeing
with majority that “Section 1170.95 is not a proper procedural vehicle for challenging a
murder conviction by attacking a prior factual finding”].)
In Jones, we held defendants “with a special circumstance finding under
section 190.2, subdivision (d) [are] not eligible for relief under section 1170.95 as a

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matter of law.[6] This is because a jury has already found them to have satisfied the new
definition of felony murder under amended section 189. Although they were not the
actual killer, a jury found them to have been a major participant in the underlying felony
who acted with reckless indifference to human life. (E.g., People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411, 419 . . . [because ‘[t]he language of the special circumstance
tracks the language of Senate Bill 1437 and the new felony-murder statutes,’ a jury’s true
finding on § 190.2, subd. (d) renders a § 1170.95 petitioner ineligible for relief].)”
(Jones, supra, 56 Cal.App.5th at p. 482.)
As we explained in Jones, “A petitioner with a pre-Banks/Clark finding faces the
same bar to relief under section 1170.95 as a petitioner with a post-Banks/Clark finding.
This is because Banks and Clark did not create a new rule of law but rather ‘clarified’ the
6 Six months before this court decided Jones, supra, 56 Cal.App.5th 474, another
panel of this court found that a superior court had erred by concluding a jury’s special
circumstance finding, “on its own,” rendered the defendant in that case to be ineligible for
relief under section 1170.95. (People v. Law (2020) 48 Cal.App.5th 811, 825, italics
added, review granted July 8, 2020, S262490.) Nonetheless, this court in Law concluded
the error was harmless because the record of the defendant’s conviction demonstrated he
was an active participant and acted with reckless disregard to human life. (Ibid.)
Jones did not discuss the decision in Law, let alone expressly overrule it. We are
reluctant to overrule our prior decisions, especially ones of a recent vintage. (See Estate
of Sapp (2019) 36 Cal.App.5th 86, 109, fn. 9 [“Absent a compelling reason, the Courts of
Appeal are normally loath to overrule prior decisions from another panel of the same
undivided district or from the same division.”].) But, to the extent Law held that a
superior court considering a petition under section 1170.95 may not conclude as a matter
of law that the petitioner is ineligible for relief based on the jury’s true finding on a
special circumstance allegation under section 190.2, subdivision (d), that decision is
inconsistent with Jones and has been overruled sub silentio. (In re Lane (1962) 58 Cal.2d
99, 105 [“It is an established rule of law that a later decision overrules prior decisions
which conflict with it, whether such prior decisions are mentioned and commented upon
or not.”]; People v. Shelmire (2005) 130 Cal.App.4th 1044, 1059 [same].)

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already-existing meaning of the phrases ‘major participant’ and ‘reckless indifference to
human life’ for purposes of special circumstance allegations under section 190.2,
subdivision (d).” (Jones, supra, 56 Cal.App.5th at p. 482; see In re Scoggins, supra,
9 Cal.5th at p. 671.) Because the decisions in Banks and Clark did not “announce[] a
new rule of law” but merely clarified existing law that “‘“had heretofore [been]
misconstrued”’” (Jones, at p. 482), the remedy for defendants like Jones—whose murder
conviction became final before Banks and Clark—is to challenge the validity of the
special circumstance finding in a collateral, habeas corpus proceeding.7 (Jones, at
pp. 482-483.)
Like Jones, defendant is barred “as a matter of law” from obtaining relief under
section 1170.95. (Jones, supra, 56 Cal.App.5th at p. 482.) The record of conviction
demonstrates defendant’s jury was properly instructed it could render a true finding on
the robbery-murder special circumstance only if it found beyond a reasonable doubt that
he was a major participant in the robbery and that he acted with reckless indifference to
human life. And on direct appeal, this court concluded substantial evidence demonstrated
7 As we recognized in Jones, there is a split of authority on many of the questions
raised by this appeal. (Jones, supra, 56 Cal.App.5th at pp. 483-485.) But we see no good
reason to revisit the reasoned and persuasive conclusions from Jones. (Cf. People v.
Oliver (2020) 54 Cal.App.5th 1084, 1100-1101 [“Although several of our sister courts
have concluded otherwise, we see no good reason to revisit that question here.”].)
In addition, among other issues, the California Supreme Court has granted review
to decide whether “superior courts [may] consider the record of conviction in determining
whether a defendant has made a prima facie showing of eligibility for relief under Penal
Code section 1170.95.” (People v. Lewis (Mar. 18, 2020, S260598) ___ Cal.5th ___
[2020 Cal. Lexis 1946].) Unless and until the California Supreme Court rules otherwise,
we will follow Jones.

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defendant shared Johnson’s intent to kill, he was a major participant in the robbery, and
he acted with reckless indifference to J.P.’s life. (People v. Roberts, supra, E027424.)
As in Jones, our holding is expressly without prejudice to defendant petitioning an
appropriate court for a writ of habeas corpus and attacking the continuing validity of the
jury’s special circumstance finding in that proceeding. (Jones, 56 Cal.App.5th at
pp. 482-483.) We express no opinion here on the merits of a such a challenge or whether
there might be some procedural bar to such a proceeding at this point.
IV.
DISPOSITION
The order denying defendant’s petition is affirmed. The judgment in this appeal
shall be without prejudice to defendant pursuing any relief available to him on habeas
corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
FIELDS
J.

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