Opinion
A161822
10-07-2021
In re Z.G., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. J.B., Defendant and Appellant.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. JD-024690-02
Chou, J. [*]
J.B. (father) appeals from several juvenile court orders, including a three-year restraining order protecting mother and his son, Z.G. (minor), from him, an order denying his request for a restraining order protecting Z.G. from mother, and the jurisdictional and dispositional orders in Z.G.'s dependency proceeding. Father primarily challenges these orders on substantial evidence grounds. We conclude the record supports the court's decisions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prior Dependency History
Z.G. was a15-year-old boy during the period relevant to this case. When Z.G. was five years old, father hit him with a belt two to three times each week, leaving marks on his arm, legs, and thighs. One incident resulted in Z.G. wearing a cast on his finger for a few weeks. At times, mother witnessed these incidents and tried to intervene, but father would get upset and threaten or attack mother as well. Sometimes father would also hit Z.G. in front of other kids if Z.G. got in trouble at school. Father's physical discipline of Z.G. ended when he was 10 or 11. When Z.G. was older and having a difficult time controlling his emotions, father said “ ‘If you don't shut up right now, I don't care, I'm going to choke you out.' ”
Z.G. had an individualized education plan (IEP) and displayed aggressive behavior in the classroom, including assaulting peers and destroying property. Z.G. was referred to protective services on 35 occasions which included investigations for physical and emotional abuse by both mother and father that were predominately deemed inconclusive or unfounded. By 2015, there was a restraining order protecting mother and Z.G. from father, but father violated the order.
In April 2015, Z.G. was declared a dependent of the court and removed from his parents' custody largely due to their significant history of domestic violence. The following year, Z.G. returned to mother's custody, and mother received family maintenance services. Z.G. continued to live with mother and had little contact with father until 2020. Z.G. reconnected with father in June 2020.
In July 2020, mother and Z.G. got into an argument, Z.G. assaulted mother, and she bit Z.G. on his arm, leaving a scar. Z.G. left his mother and father obtained custody of Z.G. Although father had custody, Z.G. actually lived with a paternal aunt because he often argued with father.
II. September 2020 Dependency Petition
During a family gathering in the middle of September 2020, Z.G. and father got into an argument. Father made degrading statements about Z.G. and attributed Z.G.'s negative behavior to mother. Z.G. confronted father, who said “ ‘You better stop before I do something to you.' ” They engaged physically, and there were conflicting accounts of whether Z.G. brandished a knife. Father contacted law enforcement and considered sending Z.G. to juvenile hall, but instead sent him to a mental health facility.
When the facility was ready to discharge Z.G., father refused to pick him up. Father wanted Z.G. to be placed at a facility for two weeks to receive treatment, “cool down, ” and “reflect on his actions.” Father signed a voluntary release of child custody, leaving Z.G. without parental housing or supervision. Mother reported that she was unable and unwilling to care for Z.G. Z.G. was then delivered into protective custody. Three days later, the Alameda County Social Services Agency (Agency) filed a dependency petition alleging Z.G. came within Welfare and Institutions Code section 300. The Agency alleged there was a substantial risk of serious physical harm to Z.G. based on the physical altercation and his feeling unsafe to return to father's custody. (See § 300, subd. (b)(1).) It further alleged that Z.G. was institutionalized, and that neither parent or guardian was willing to accept physical custody of him or provide for his care. (See § 300, subd. (g).) After a hearing, the juvenile court detained Z.G.
Undesignated statutory references are to the Welfare and Institutions Code.
III. Jurisdiction and Disposition Report
According to the Agency's October 2020 jurisdiction and disposition report, father denied physically disciplining Z.G. and denied domestic violence ever occurred in his house. Z.G., according to father, could return to his care if Z.G. refrained from making false accusations of physical or emotional abuse. Father also wanted Z.G. to seek therapy to address his anger issues. Based on this information, as well as the July and September 2020 confrontations, the Agency recommended Z.G. be declared a dependent of the court and placed in foster care. The Agency was concerned father threatened to press criminal charges against Z.G. and place him in juvenile hall to address his challenging behaviors. Further, both mother and father denied any physical abuse, and both had a long history of domestic violence that emotionally impacted Z.G.
IV. Restraining Order
While the dependency petition was pending, Z.G. started communicating with mother. Interactions began with a court-authorized overnight visit and expanded to positive weekly unsupervised visits and additional overnight visits. Later, the court released Z.G. to mother's care pending the jurisdiction and disposition hearing. Father, however, did not have any contact with Z.G. since the September altercation.
At the end of October 2020, father filed a request to restrain mother from Z.G., based entirely on the July 2020 incident in which mother bit Z.G. A few days later, Z.G. requested a restraining order against father-a request that mother later joined-based on the September 2020 events and father's history of hitting and threatening Z.G. The court issued a temporary restraining order against father but declined to issue one against mother.
During the December 2020 evidentiary hearing for a permanent restraining order, Z.G. expressed his fear of father and the need for protection. He described father's past beatings, as well as father's violence against mother and recent threats against Z.G. In one instance, when Z.G. asked father who was going to pay for his phone bill. Father responded “ ‘I should have killed you that day. I could have killed you that day.' ” On another occasion, father told Z.G., “ ‘I will have someone come and kill you.... I can have other people come and kill you.' ” Z.G. also noted father tried to obtain his foster care address from his school-an action that Z.G. perceived as threatening. The court found this evidence largely unrefuted and it issued a three-year restraining order protecting Z.G. and mother from father. Father was prohibited from directly or indirectly contacting Z.G. and mother.
In support of his request to restrain mother from Z.G., father emphasized the injuries Z.G. sustained during the July 2020 fight with mother. He also stated that mother scratched Z.G.'s face a few years prior. The court denied father's request, noting Z.G. did not express fear of mother.
V. Jurisdiction and Disposition Hearing
Before the January 2021 jurisdiction and disposition hearing, the Agency filed an amended petition and addendum jurisdiction/disposition report (addendum report). The Agency noted Z.G. remained within section 300, but recommended placing Z.G. with mother and providing them with family maintenance services. The addendum report made no recommendations regarding the removal of Z.G. from father's custody but did recommend that the court find “that the previously noncustodial” father “is not entitled to reunification services, but will be provided informal child welfare services at the discretion of the agency.”
According to the addendum report, Z.G. reported that father exacerbated his feelings of depression or anger, and he was not willing to interact with father. He was happy in mother's care, had reintegrated into his school, improved his grades, and was engaged in individual therapy. Mother expressed a willingness to engage in family therapy and develop effective communication tools. She also participated in Z.G.'s IEP meeting to update his educational needs. In contrast, father did not participate in any child or family team meetings for Z.G. Instead, he sent the Agency an email claiming the restraining order hearing was not fair, the restraining order was unfounded because he never threatened Z.G., and Z.G. was unduly influenced by mother's statements about him.
At the combined jurisdictional and dispositional hearing, during which the trial court denied father's request for a continuance, the court found true the allegations in the amended petition and adopted the recommendations in the addendum report. The court declared Z.G. a dependent, placed him with mother, and ordered family maintenance services for her. Consistent with the recommendations in the addendum report, the court made no removal orders or findings.
DISCUSSION
I. Restraining Orders
Father challenges the juvenile court's restraining order decisions-granting Z.G.'s request and denying father's request-on substantial evidence grounds. After reviewing the evidence, we conclude the court's decisions were proper.
Dependency law “protect[s] the welfare and best interests of the child, ” placing children in stable, safe permanent homes with parents if possible. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597; In re Marilyn H. (1993) 5 Cal.4th 295, 307.) After a juvenile dependency petition has been filed, the juvenile court may “enjoin[] any person from molesting, attacking, striking, stalking, threatening... battering, harassing, telephoning, ... destroying the personal property, contacting, ... or disturbing the peace of the child.” (§ 213.5, subd. (a).) Section 213.5 permits issuing a restraining order when failing to make one potentially jeopardizes the safety of the protected person. (In re C.Q. (2013) 219 Cal.App.4th 355, 363-364.)
Restraining order decisions are reviewed for an abuse of discretion-whether the decision was arbitrary, capricious or patently absurd-and the facts supporting the orders for substantial evidence. (In re Carlos H. (2016) 5 Cal.App.5th 861, 866.) “[W]e draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court's order, and affirm the order even if other evidence supports a contrary conclusion.” (In re Megan S. (2002) 104 Cal.App.4th 247, 251.) We defer to the juvenile court on the credibility of the evidence and do not resolve evidentiary conflicts or reweigh the evidence. (Ibid.)
A. Restraining Order Against Father
We reject father's argument there was insufficient evidence supporting the three-year restraining order protecting Z.G. and mother from father. Father acknowledged that he repeatedly hit Z.G. with a belt, claiming this was discipline rather than abuse. Although father argues that he had not hit Z.G. since he was 11 or 12-years-old, suggesting he posed no physical risk to Z.G. at the time of the hearing, a section 213.5 restraining order does not require a showing of the likelihood of prospective physical harm. (See In re Bruno M. (2018) 28 Cal.App.5th 990, 997 (Bruno M.).) Section 213.5 authorizes the enjoining of behavior that is simply “threatening.” (§ 213.5, subd. (a).) Indeed, “[t]here need only be evidence that the restrained person ‘disturbed the peace' of the protected child”-“ ‘ “conduct that destroys the mental or emotional calm of the other party.”' ” (Bruno M., at p. 997; § 213.5, subd. (a).) Those circumstances exist here. Z.G. testified that he feared father based on past hitting and witnessing father's past violence against mother. (See Bruno M., at p. 997 [witnessing violence against a mother supports a restraining order].) He further stated that father's recent threats to enlist someone to kill Z.G. or place him in juvenile hall, as well as his father's attempt to obtain Z.G.'s confidential foster home information only exacerbated these feelings. (See In re Brittany K. (2005) 127 Cal.App.4th 1497, 1511-1512 [pursuing a child may terrorize or torment the child].)
Father suggests that because the Agency did not request the restraining order against him, it did not agree with the juvenile court's decision. At the hearing, however, the Agency expressed its support of a restraining order against father. In any event, Agency support is not relevant on a substantial evidence review.
Father attempts to discredit Z.G.'s testimony by citing the Agency's detention report which deemed allegations of physical abuse unfounded and Z.G.'s prior statements denying any fear of father. This argument ignores the standard of review. We defer to the juvenile court's credibility determinations and resolution of conflicting evidence. (See In re Megan S., supra, 104 Cal.App.4th at p. 251.) At the hearing, the trial court expressly found Z.G.'s testimony credible, and father admitted that he routinely beat Z.G. when he was younger. The court could reasonably conclude father's past violence and recent threats supported the restraining order.
We further reject father's cursory argument challenging the evidence that mother was also entitled to protection. Section 213.5 permits a court to issue orders protecting the child's parent. (§ 213.5, subd. (a).) By the time the juvenile court held the hearing on the restraining order, Z.G. had already been placed with mother. Z.G. presented testimony of mother's fear of father, based on their history of domestic violence, including physical assaults and threats against mother when she tried to protect Z.G. from father's beatings. (Cf. In re C.Q., supra, 219 Cal.App.4th 355, 364-366 [reversing restraining order when there was no substantial evidence the parent had directed abusive conduct to the intended protected persons].) Contrary to father's assertions, mother joined Z.G.'s request for the restraining order during the hearing, citing her post-traumatic stress disorder from father's domestic violence. Ample evidence supported issuing a restraining order protecting mother.
To the extent the three-year restraining order effectively prevented father from reconciling with Z.G. before he reached the age of majority, substantial evidence supported the court's factual findings and the court acted well within its discretion when determining the length of the protective order. (§ 213.5, subd. (d)(1) [restraining order “shall remain in effect, in the discretion of the court, no more than three years”]; In re B.S. (2009) 172 Cal.App.4th 183, 193 [restraining order will not be disturbed if supported by substantial evidence].) In any event, Z.G., as the juvenile court itself acknowledged, may at any time request modifying or terminating the restraining order in order to permit contact with father. (See § 213.5, subd. (d)(1).)
B. Denial of Restraining Order Against Mother
The juvenile court further did not err by rejecting father's request for an order protecting Z.G. from mother. Father speculates that the juvenile court simply ignored the evidence that mother bit Z.G. in July 2020 and scratched him a few years prior. But at the time of the restraining order hearing, Z.G. did not express any fear of mother. (See Bruno M., supra, 28 Cal.App.5th at p. 997.) Indeed, Z.G. and mother had several unsupervised, overnight visits, and the Agency ultimately recommended placing Z.G. with mother pending the jurisdiction/disposition hearing. Z.G. reported being happy with mother, his grades had improved, and there were no additional reports of verbal or physical altercations or abuse while in her care. Additionally, mother participated in Z.G.'s IEP meeting to update his educational needs and she expressed a willingness to engage in family therapy with Z.G. From this evidence, the juvenile court could reasonably conclude mother did not present a risk to Z.G.'s safety. (In re C.Q., supra, 219 Cal.App.4th at p. 364; In re Noe F. (2013) 213 Cal.App.4th 358, 366 [reviewing court does not “consider whether there is evidence from which the dependency court could have drawn a different conclusion, ” only whether “there is substantial evidence to support the conclusion that the court did draw”].)
II. Jurisdiction
Father next argues there was insufficient evidence supporting the juvenile court's finding Z.G. is a child described in section 300, subdivision (b)(1)-i.e., a child who has suffered or there is a substantial risk the child will suffer serious physical harm resulting from parent's inability to adequately supervise or protect the child. (§ 300, subd. (b)(1); In re John M. (2013) 217 Cal.App.4th 410, 418 [jurisdictional findings reviewed for substantial evidence].) We disagree.
At a jurisdictional hearing, the Agency must demonstrate by a preponderance of the evidence that the child falls within the categories under section 300. (In re E.E. (2020) 49 Cal.App.5th 195, 205.) “The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) A finding under section 300, subdivision (b) requires “an actual inability to provide the necessary supervision or protection.” (In re Joaquin C. (2017)15 Cal.App.5th 537, 561.) “The court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child.” (In re N.M. (2011) 197 Cal.App.4th 159, 165.) “[P]ast conduct may be probative of current conditions” if there is “ ‘some reason to believe the acts may continue in the future.' ” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
A. Agency Evidence
As a threshold matter, we reject father's claim the Agency failed to proffer any evidence that Z.G. was a child within section 300, subdivision (b)(1). The Agency moved and the juvenile court admitted into evidence, without objection, the Agency's detention, jurisdictional, and addendum reports. Those reports-detailing Z.G.'s history of contacts with child welfare services, his physical altercations with both mother and father, and both parents' statements regarding their inability or unwillingness to care for Z.G.-were admissible, competent evidence supporting the court's section 300 finding. (§ 355, subd. (b)(1) [admissibility of county reports involving custody, status, or welfare of minor in a dependency proceeding]; In re Lucero L. (2000) 22 Cal.4th 1227, 1243 [hearsay evidence in social study reports is legally admissible].) While a jurisdictional finding relying exclusively on hearsay contained in these reports is improper if a party makes a specific timely objection, father made no such objection here. (§ 355, subd. (c).)
B. Substantial Evidence
The inability of parents to supervise and protect Z.G., placing him at substantial risk of serious physical harm, is also supported by substantial evidence. The juvenile court found true the allegation that Z.G. was at risk of physical injury while in his father's care. This finding was supported by the evidence in the record-which revealed Z.G. has behavioral issues that in the past had been addressed by father hitting Z.G. and later resulted in physical altercations between Z.G. and his parents and threats of physical violence from father. Indeed, the September 2020 argument escalated into physical violence and threats and resulted in father sending Z.G. to a psychiatric hospital. But rather than providing care for Z.G., father refused to pick Z.G. up from the psychiatric facility. Instead, he signed a voluntary release of custody and insisted the psychiatric facility retain Z.G. for two weeks so that he could “reflect on his actions” and receive treatment. At that time, mother also refused to accept physical custody of Z.G. because she was unwilling to provide him with care. A social worker report stated that father demonstrated no willingness or ability to address Z.G.'s mental health and behavioral needs. Because his parents failed to appropriately address their conflicts with Z.G. and Z.G.'s behavioral challenges, the social worker noted Z.G. was at risk of emotional or physical harm due to continued physical and verbal threats.
The record further demonstrates that father's threatening and physical responses to Z.G. would likely continue in the future. (See In re Rocco M., supra, 1 Cal.App.4th at pp. 823-824.) Critically, Z.G. obtained a restraining order against father because of his fear of father and father's threats of physical violence against him. Z.G. reported to the social worker his belief that father lacked any insight into his mental health issues, and his interactions with father exacerbated his feelings of depression and fear. Indeed, father acknowledged hitting Z.G. in the past and leaving bruises but did not believe that his actions constituted abuse. He found no fault with his own actions and simply believed Z.G. was manipulating the “system.” And despite recognizing that he could benefit from de-escalation training, father does not dispute that he failed to participate in individual therapy and classes regarding domestic violence and anger management. (In re J.K. (2009) 174 Cal.App.4th 1426, 1439 [considering failure to take steps to address past abusive behavior when assessing current and future risk to child].) Father further casts his attempt to confine Z.G. in a psychiatric facility-even though the facility sought to discharge Z.G.- as an attempt to protect Z.G. by providing necessary treatment. But the juvenile court could reasonably conclude this evidence demonstrated that father did not and would not adequately provide parental supervision or protection of Z.G. (See In re Megan S., supra, 104 Cal.App.4th at p. 251.) Thus, the juvenile court's finding that Z.G. was at serious risk of physical harm due to his parents' failure or inability to supervise or protect him was not unreasonable or lacking in evidentiary support.
C. Continuance
We further reject father's claim the juvenile court abused its discretion by denying his request to continue the jurisdictional hearing. Father was in a car accident several days before the hearing and did not appear at the hearing. His counsel sought a continuance, arguing that father was taking prescription pain medication that limited his ability to meaningfully participate. The juvenile court found the hearsay regarding father's injury unpersuasive and noted father had previously requested continuances. Even though it was questionable whether father was still taking the medication by the time of the hearing, the juvenile court continued the hearing a few hours to the afternoon. However, at the afternoon session, father's counsel represented that father had returned to the hospital to address a migraine and chest pain. The juvenile court then denied father an additional continuance and the jurisdictional hearing proceeded without father's appearance.
The juvenile court did not abuse its discretion by denying any further continuances. (See In re Elijah V. (2005) 127 Cal.App.4th 576, 585 [decisions regarding continuances reviewed for an abuse of discretion].) Continuances are discouraged in dependency cases and may be granted “only upon a showing of good cause” if it is not contrary to the child's interest. (§ 352, subd. (a); In re Giovanni F. (2010) 184 Cal.App.4th 594, 604.) The court here questioned the veracity of father's statements regarding his injuries and noted a pattern of father repeatedly requesting continuances. In contrast, Z.G.'s counsel stated that attendance at court appearances caused Z.G. significant anxiety and disrupted his school attendance. Although Z.G. was placed with mother at the time of the hearing, Z.G. was reportedly unable to “heal” from prior events because the hearings precluded any sense of closure. (In re Emily L. (1989) 212 Cal.App.3d 734, 743 [noting dependency statute's “admonition to accelerate proceedings so that the child is not kept ‘in limbo' any longer than necessary”].) Z.G's interests in a prompt resolution warranted denying the continuance request. (See § 352, subd. (a) [substantial weight given to the child's need for prompt resolution of custody status and a stable environment].)
Even assuming this decision was an abuse of the court's discretion-which we do not find-any error is harmless. (See In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187 [identifying circumstances that warrant reversal when denying a continuance].) Father claims he intended to present testimony that the juvenile court had previously ruled irrelevant or nonresponsive to questions regarding physical abuse by mother. But even if father had been able to present that testimony, there is no reason to believe that the jurisdictional findings-which were predicated on both parents' abuse and neglect of Z.G.-would have been any different.
III. Removal
Finally, father contends the juvenile court erroneously removed Z.G. from his custody because it failed to adhere to section 361, subdivision (c). That section authorizes the removal of a child from a parent's physical custody only on clear and convincing evidence of “substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor” and a finding that “ ‘there are no “reasonable means” by which the child can be protected without removal.' ” (In re Ashly F. (2014) 225 Cal.App.4th 803, 809; § 361, subd. (c)(1).) According to father, the juvenile court removed minor from his custody without making those requisite findings and based solely on the three-year restraining order-which only required a preponderance of the evidence. (Evid. Code, § 115 [“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”]; § 213.5 [not articulating any standard of proof for issuing a restraining order].)
As an initial matter, the juvenile court did not make any removal findings under section 361, subdivision (c). Presumably, this omission was based on the juvenile court's apparent belief that the father was a noncustodial parent. Indeed, the Agency's addendum report, admitted into evidence, stated that father “signed a voluntary release of child custody” and appeared to identify father as a “previously noncustodial” parent. Moreover, it is questionable whether section 361, subdivision (c) applies here because Z.G. did not appear to reside-meaning “to dwell permanently or for a considerable time”-with father. (In re Dakota J. (2015) 242 Cal.App.4th 619, 628 [defining “reside”]; In re Anthony Q. (2016) 5 Cal.App.5th 336, 347 [the “rigorous requirements of section 361, subdivision (c), apply only when the issue is whether to remove a dependent child from the physical custody of a parent with whom the child was residing at the time the dependency petition was initiated”], italics added.) Although father reportedly obtained physical and legal custody of Z.G. in July 2020, since that time, Z.G. resided with paternal aunts while father provided for his basic needs.
But resolving this issue is unnecessary. Even assuming there was error, it is not reasonably probable “ ‘such finding, if made, would have been in favor of continued parental custody.' ” (In re Jason L. (1990) 222 Cal.App.3d 1206, 1218[failure to make findings regarding minor's change of custody or commitment subject to harmless error analysis].) Indeed, the record contains more than enough evidence “from which [any] reasonable fact finder [would] have found it highly probable that” there was a substantial danger to Z.G.'s physical health, safety, protection or physical or emotional well-being if he was not removed from father's physical custody. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996, 1101.)
Rather than relying solely on the restraining order against father when making its jurisdictional and dispositional determinations, as father argues, the juvenile court expressly relied on “the totality of all of the reports that are admitted into evidence as well as the evidence procured at the restraining order hearings.” (Italics added.) During those hearings, the court expressly found Z.G. credible, including his testimony about father's past physical abuse and threats, father's recent threats of physical violence, his recent physical altercation with father, and his continued fear of father. (See Conservatorship of O.B., supra, 9 Cal.5th at pp. 1011-1012 [deferring to trial court's evaluation of witness credibility].) Moreover, one month after the restraining order hearing, the Agency noted in its addendum report that minor refused to return to his father's home because he did not feel safe. Father's denial of any past physical abuse of Z.G. despite admitting that he injured Z.G. several times with a belt further supports a finding of harmless error. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1657-1658 [denial of responsibility for problems that result in harm relevant when considering removal].) As does father's failure to take any steps to address his abusive behavior toward Z.G. (See In re J.K., supra, 174 Cal.App.4th at p. 1439 [failure to take steps to address abusive behavior supports finding of future risk to child].) Based on this evidence, there is no reasonable probability that the juvenile court would have ruled differently even if it made any removal findings. (See In re Jason L., supra, 222 Cal.App.3d at p. 1218.)
Finally, father's contention that the juvenile court applied the wrong standard of proof for removal because it failed to articulate that standard on the record does not change the outcome here. The record establishes that the court did not address the removal of Z.G. from father's custody or make any removal findings. Under these circumstances, this failure, even if erroneous, is subject to a harmless error analysis (In re Jason L., supra, 222 Cal.App.3d at p. 1218)and, as explained above, any such error was harmless under the standard set forth in Conservatorship of O.B., supra, 9 Cal.5th at pages 995-996.
DISPOSITION
The juvenile court's orders are affirmed.
WE CONCUR: Tucher, P.J., Fujisaki, J.
[*] Judge of the Superior Court of San Mateo County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.