Opinion
E071752
04-14-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL EUGENE FRANTZ, Defendant and Appellant.
Gerald J. Miller, 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, Michael P. Pulos, Melissa Mandel, Tami Hennick and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1800361) OPINION APPEAL from the Superior Court of Riverside County. Chad W. Firetag, and Jorge C. Hernandez, Judges. Affirmed with directions. Gerald J. Miller, 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, Michael P. Pulos, Melissa Mandel, Tami Hennick and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendant and appellant, Michael Eugene Frantz, of one count of stalking with a prior conviction (Pen. Code, § 646.9, subd. (c)(2); count 1) and one count of vandalism of $400 or more (§ 594, subd. (a)-(b)(1); count 3). The trial court sentenced him to seven years and imposed a $900 restitution fine and $140 in fees.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On appeal, defendant argues (1) the trial court prejudicially responded to the jury's question regarding count 1; (2) he is entitled to mental health diversion under section 1001.36; (3) the trial court impermissibly imposed the fines and fees without determining whether he can pay them; and (4) his one-year enhancement for a prior prison term should be stricken under recently enacted Senate Bill No. 136 (2019-2020 Reg. Sess.).
The People agree with defendant's fourth contention, as do we. We reject defendant's remaining contentions and affirm his convictions. The sentence is vacated and the matter is remanded for the trial court to strike defendant's one-year enhancement and resentence defendant accordingly.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant learned that his mobile home park neighbor, Craig, was required to register as a sex offender due to a conviction for possessing child pornography. Defendant saw Craig at a restaurant and recognized him from a sex offender registry website. Defendant testified that he called Craig a piece of shit, but denied threatening him.
Craig, on the other hand, testified that defendant approached him and loudly asked if he lived in the mobile home park. Craig said that he did. Defendant then started yelling that Craig was a convict and a pervert, and told Craig, "'I could kill you, slap you, stab you and the cops couldn't do anything because I'm a wanted felon on the run.'" Craig was startled and left the restaurant, but did not report the incident because he "took it with a grain of salt" and thought it was a "one-time thing."
Craig testified that he encountered defendant about a week later while walking to the store. Defendant, a woman, and a man were walking together toward him. When the group was near Craig, defendant swung a broomstick at him, called him a pervert, and said, "'I'm going to get you. Watch your back.'" Defendant also said he should "f—k up" Craig. Craig was scared and felt threatened. Craig took his cell phone out and tried to record the group, but the incident was over before he could unlock his cell phone.
Defendant disputed Craig's story. He testified that the closest he came to Craig was about 20 to 30 feet away and he only called him "a piece of shit" and a child molester. Defendant denied swinging a broom at Craig or threatening him. Defendant's fiancée testified that the group yelled things at Craig like calling him a child molester and "piece of shit," but denied defendant threatened him. She also testified that the group was about 100 feet away at the time and defendant did not have a broom.
When Craig returned to his mobile home, he noticed his surveillance cameras were missing. He reviewed the footage, which showed defendant was at his mobile home about ten minutes after the previous encounter. The footage also showed defendant ripping a camera off the carport roof. Craig started taking defendant "seriously" after this incident. Because Craig feared for his safety, he called the police and reported his encounters with defendant.
Defendant was charged with one count of stalking with a prior conviction (§ 646.9, subd. (c)(2); count 1); one count of making criminal threats (§ 422; count 2); and one count of vandalism of $400 or more (§ 594, subd. (a)-(b)(1); count 3). The People also alleged defendant had four prison priors within the meaning of section 667.5, subdivision (b), a prior conviction of grand theft of a firearm, a serious felony within the meaning of section 667, subdivision (a), and a strike prior within the meaning of sections 667, subdivisions (c) and (e)(1), and 1170.12, subdivision (c)(1).
The jury convicted defendant of counts 1 and 3, but acquitted him of count 2. Defendant admitted the priors allegations, and the trial court dismissed his prior serious offense. The trial court sentenced defendant to seven years, which included a one-year enhancement for his prison prior. Defendant timely appealed.
III.
DISCUSSION
A. The Trial Court Properly Answered the Jury's Question
While deliberating, the jury submitted the following question to the trial court, "Do we have to believe [Craig] personally felt fear or if a reasonable person would feel fear to make a 'credible threat'?" After conferring with counsel, the trial court responded to the jury's question by stating, "[t]he Court refers the jury to Instructions 1301 and 1300."
Defendant asserts the trial court prejudicially erred in responding to the jury's question. The People argue (1) defendant forfeited the issue by failing to object; (2) the trial court's response was appropriate; and (3) even if it was improper, any resulting error was harmless. We agree with the People on all three points.
1. Forfeiture
We conclude defendant forfeited the argument that the trial court's response to the jury's question because he failed to object to the response. "Generally, '"[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language."'" (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.) This principle applies when, as here, the trial court instructs the jury in response to the jury's question. (People v. Loza (2012) 207 Cal.App.4th 332, 370 (Loza).) "'When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal.'" (People v. Boyce (2014) 59 Cal.4th 672, 699.)
Defendant argues he did not forfeit the argument that the trial court's response to the jury's question was erroneous because there is "no record" as to whether he objected. We disagree. The minute order of the proceedings state as follows: "Court and Counsel Confer regarding: Jury Question #1 and #2. A response is provided to the jury." The minute order therefore confirms that the trial court and counsel discussed question from the jury in chambers, but defense counsel did not make any record of any objection to the trial court's response to the jury. "We cannot interpret a silent record including an unreported chambers conference to indicate anything other than trial counsel's failure to object to the judge's instructions." (People v. Thompkins (1987) 195 Cal.App.3d 244, 251 fn.4, italics added.) Accordingly, defendant forfeited his argument that the trial court's response to the jury's question was erroneous. (See People v. Dykes (2009) 46 Cal.4th 731, 802-803 [defendant forfeited argument that trial court's response to jury's question was inappropriate by failing to object until after trial court gave response to jury].)
2. The trial court's response to the jury's question was appropriate
Even if defendant had not forfeited the argument, we reject it on the merits. "During jury deliberations 'when the jury "desire[s] to be informed on any point of law arising in the case . . . the information required must be given [by the trial court]."' [Citations.] 'However, "[w]here the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information."' [Citation.] Although the trial court need not always elaborate on the standard instructions, the trial court nevertheless has 'a "'mandatory duty' to clear up any instructional confusion expressed by the jury." [Citation.]' This means that a trial court's response to a jury question can be erroneous even if it does not technically misstate the law." (People v. Fleming (2018) 27 Cal.App.5th 754, 766 (Fleming).)
"'An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.' [Citation.] However, '[w]e review de novo the legal accuracy of any supplemental instructions provided.'" (Fleming, supra, 27 Cal.App.5th at p. 775.)
Defendant suggests the trial court's responding to the jury's question by directing them to CALCRIM Nos. 1300 and 1301 was inadequate because the jury was confused whether it had to find that (1) Craig was actually afraid due to defendant's conduct and (2) whether that fear was reasonable. We disagree. The trial court's referring the jury to CALCRIM No. 1301 was appropriate because the instruction explained that a "credible threat" is "one that causes the target of the threat to reasonably fear for his or her safety." The language therefore confirmed that the jury had to find that Craig actually and reasonably feared for his safety in order to find that defendant made a "credible threat."
Defendant does not dispute that CALCRIM No. 1301 correctly defined "credible threat" and correctly enumerated the elements for count 1. (See People v. Ibarra (2007) 156 Cal.App.4th 1175, 1196-1197 [holding CALCRIM No. 1301 correctly states law as to stalking in violation of section 646.9].) Under these circumstances, the trial court did not abuse its discretion by answering the jury's question by referring them to CALCRIM No. 1301, which accurately stated the law. (People v. Lua (2017) 10 Cal.App.5th 1004, 1017 ["[T]he trial court does not abuse its discretion when it determines the best way to aid the jury is by directing the jury to reread the applicable jury instructions that 'are themselves full and complete.'"].)
The two cases defendant primarily relies on, People v. Gonzales (1999) 74 Cal.App.4th 382 (Gonzales), disapproved on other grounds by People v. Anderson (2011) 51 Cal.4th 989, and Loza, supra, 207 Cal.App.4th 332, do not change our conclusion. Both cases are distinguishable.
In Gonzales, supra, 74 Cal.App.4th at p. 384, the defendant was charged with willful infliction of corporate injury on a cohabitant arising from an alleged domestic violence incident. The victim claimed her injuries resulted from an accident. (Id. at p. 385.) During deliberations, the jury sent the trial court a note requesting further clarification on the "willful intent" requirement. (Id. at p. 388.) At the hearing on the matter, the trial court re-instructed the jury with two of the instructions it had already given. (Ibid.) In response, jurors shook their heads, and some stated they were "troubled" because they remained confused by the instructions, particularly with how they applied if they found defendant's conduct was accidental. (Ibid.) The trial court told the jurors to "'use your common sense,'" reminded them "'you have got the basic instructions regarding willful,'" and said that was "'as far as [the court] can go.'" (Id. at pp. 388-389.) The Gonzales court held the trial court erred because the jury's comments showed the instructions were insufficient to resolve the jury's confusion, so by simply re-reading them, the trial court left the jury "floundering." (Id. at p. 391.)
In Loza, "the jury specifically inquired whether it was required to, or should, consider the state of mind of an aider and abettor, and asked a question that indicated that the jury believed [the aider and abettor] may have been less culpable than the direct perpetrator." (Loza, supra, 207 Cal.App.4th at p. 352.) Specifically, the jury asked, "'Concerning aiding + abetting does the state of mind of the aider and abettor need/should be considered? If the person aids and abets because they are worried about an attack from the perp[e]trator does tha[t] make a difference when considering the degrees of murder[?]'" (Id. at p. 349.) By responding with only, "'"You must apply the evidence to the law as you have been instructed,"'" (id. at p. 349.) the trial court failed to properly instruct the jury, because the jury's question demonstrated that it "did not understand that the prosecution had to prove [the defendant's] intent as an aider and abettor." (Id. at p. 355.) The trial court, however, did nothing to resolve the jurors' confusion beyond telling them to apply the instructions as given. (Ibid.)
Neither Gonzales nor Loza applies here. Although the jury's question shows that it had some confusion about what constitutes a credible threat, CALCRIM No. 1301 properly defined the term. Unlike the trial court in Loza, the trial court here did not simply respond to the jury's question by telling it to apply the law to the evidence. And unlike the jury in Gonzales, the jurors here did not express continued confusion after the trial court directed them to the applicable instructions. Nor did they submit additional questions or ask for further clarification.
Defendant also briefly relies on People v. Samuels (2005) 36 Cal.4th 96, People v. Eid (2010) 187 Cal.App.4th 859, and Fleming, supra, 27 Cal.App.5th 754. But the language in Samuels defendant cites is from a concurrence. The majority rejected the defendant's argument that the trial court prejudicially erred by responding to the jury's question by re-reading the applicable jury instruction instead of "respond[ing] more fully." (People v. Samuels, supra, at p. 135.) In People v. Eid, supra, at page 882, the trial court's response to the jury's question was substantively wrong on the law, so it "misled the jurors and did not provide them with the information they requested." Similarly, in Fleming, the trial court erroneously "responded to a different question that the jury had not asked," so the trial court's answer "did not correctly instruct the jury on the point of law that was the subject of the query" and "improperly burdened the jury with the responsibility for deciding a question of law that was the court's duty to answer." (Fleming, supra, at pp. 765, 767.) In short, Samuels, Eid, and Fleming do not support defendant's position.
Because the trial court's response apparently resolved the jurors' confusion, did not misstate the law, and properly directed the jury to the applicable jury instruction, it was not an abuse of discretion. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1213, superseded by statute on other grounds as recognized by Satele v. Superior Court (2019) 7 Cal.5th 852, 857-858 [trial court's response to jury's question "advising them to reread" instructions was appropriate because it "resolve[d] the jury's questions"].) We therefore reject defendant's contention that the trial court's response was inadequate under the circumstances.
3. Harmless error
Even if the trial court's response to the jury's question was deficient, any resulting error was harmless. "A court's failure under Penal Code section 1138 to adequately answer a jury's question 'is subject to the prejudice standard of People v. Watson [(1956)] 46 Cal.2d 818, 836,' i.e., whether the error resulted in a reasonable probability of a less favorable outcome. [Citation.]" (People v. Lua, supra, 10 Cal.App.5th at p. 1017.)
Here, it is not reasonably probable defendant would have obtained a more favorable outcome had the trial court responded to the jury's question by explicitly stating that a credible threat requires the victim to experience actual and reasonable fear.
At the outset, we disagree with defendant that Craig's testimony as to whether he experienced actual fear was ambiguous. There was uncontroverted evidence that Craig was actually fearful of defendant. He unequivocally testified on several occasions that defendant made him fear for his safety. He explicitly testified that he told the police he was scared, "[e]xtremely stressed," and "panicky" because of defendant's conduct and comments. Relying on Craig's testimony, the prosecutor emphasized several times that Craig was in actual fear.
Further, defendant never suggested that Craig did not experience actual fear or that his fear was unreasonable. Defendant instead insisted that his "childish behavior" was "in jest" and he did not intend for it to be threatening. During closing argument, defendant's counsel specifically asked the jurors to question whether they "really believe[d] [Craig] . . . when he says, you know what, I was so terrified for my life." And on appeal, defendant concedes that "any fear as a result of [defendant's] actions would have been reasonable."
Because there was uncontroverted evidence that Craig experienced actual fear and it is undisputed that defendant's conduct would have reasonably caused Craig fear, it is not reasonably probable that defendant would have received a more favorable outcome had the trial court had explicitly told the jury in response to its question that it had to find Craig actually and reasonably feared for his safety. We therefore conclude any error resulting from the trial court's response to the jury's question was harmless.
B. Mental Health Diversion
Defendant argues the judgment should be conditionally reversed and the matter remanded to allow the trial court to determine whether he is entitled to mental health diversion. We disagree.
Effective June 27, 2018, the Legislature passed Assembly Bill No. 1810 (2017-2018 Reg. Sess.), which added sections 1001.35 and 1001.36 to the Penal Code. (Stats. 2018, ch. 34, § 24.) These statutes permit discretionary diversion of persons with qualifying mental disorders that contributed to the commission of the charged offense. (See People v. Frahs (2018) 27 Cal.App.5th 784, 789, review granted Dec. 27, 2018, S252220.) In this context, "diversion" means "the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication . . . ." (§ 1001.36, subd. (c).) The court may grant diversion under section 1001.36 if the court finds: (1) the defendant suffers from an identified mental disorder; (2) the mental disorder played a significant role in the commission of the charged offense; (3) the defendant's symptoms will respond to treatment; (4) the defendant consents to diversion and the defendant waives his or her speedy trial rights; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if the defendant is treated in the community. (§ 1001.36, subd. (b)(1).)
Defendant, however, did not request a hearing regarding his eligibility for mental health diversion under section 1001.36, which went into effect in June 2018, well before his September 2018 trial and November 2018 sentencing. We therefore agree with the People that defendant forfeited his right to request a mental diversion by failing to do so in the trial court.
Forfeiture occurs where a defendant has the opportunity to request that the trial court grant discretionary relief but does not raise the issue until appeal. (See People v. Carmony (2004) 33 Cal.4th 367, 375-376 ["any failure on the part of a defendant to invite the court to dismiss [a strike] under section 1385 following Romero waives or forfeits his or her right to raise the issue on appeal"]; People v. Scott (1994) 9 Cal.4th 331, 353 [failure to object to discretionary sentencing choices forfeits challenges on appeal]; People v. Trujillo (2015) 60 Cal.4th 850, 855-856 [forfeiture rule applies in context of challenges to a fee order].) As of June 27, 2018, when the pretrial diversion law took effect, defendant could have requested pretrial diversion "at any point . . . until adjudication," (§ 1001.36, subd. (c)), but he did not do so. Accordingly, he forfeited his right to raise the issue of pretrial diversion for the first time on appeal.
C. Fines and assessments
The trial court imposed a $900 restitution fine (§ 1202.4.), an $80 court operations assessment (§ 1465.8), and a $60 criminal conviction assessment (Gov. Code, § 70373). Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant asserts the trial court prejudicially erred in imposing the fine and assessments without determining his ability to pay them.
As for the $900 restitution fine, defendant forfeited his argument that the trial court impermissibly imposed it. "Even before Dueñas, section 1202.4 permitted the court to consider [a defendant's] inability to pay. [Citation.] The statute mandates that the court impose a restitution fine 'unless it finds compelling and extraordinary reasons for not doing so,' and '[a] defendant's inability to pay shall not be considered a compelling and extraordinary reason.' (§ 1202.4, subd. (c), italics added.) However, the court may consider the defendant's inability to pay 'in increasing the amount of the restitution fine in excess of the minimum fine'" of $300. (People v. Taylor (2019) 43 Cal.App.5th 390, 399 (Taylor).)
Here, defendant did not object or request an ability to pay hearing, even though the court could have considered the issue under the restitution statute. "Consequently, [defendant] forfeited the objection that the court failed to consider his ability to pay the restitution fine." (Taylor, supra, 43 Cal.App.5th at pp. 399-401.)
As to the $140 in assessments, because the trial court did not determine whether defendant could pay them, "[u]nder Dueñas, this was error, and we must remand for an ability to pay hearing unless the error was harmless." (Taylor, supra, 43 Cal.App.5th at p. 401.) The People argue defendant forfeited his Dueñas argument and, in any event, the trial court constitutionally imposed the assessments without assessing defendant's ability to pay them. We need not address these contentions because we agree with the People that the error, if any, was harmless.
"'[E]very able-bodied' prisoner is required to work. (§ 2700; Cal. Code Regs., tit. 15, § 3040, subd. (a).) A prisoner's assignment to a paid position 'is a privilege' that depends on 'available funding, job performance, seniority and conduct.' (Cal. Code Regs., tit. 15, § 3040, subd. (k); accord, People v. Rodriguez (2019) 34 Cal.App.5th 641, 649.) Wages in prison range from $12 to $56 per month, depending on the job and skill level involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Fifty percent of [defendant's] wages and trust account deposits will be deducted to pay any outstanding restitution fine, plus another 5 percent for the administrative costs of this deduction. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).)" (Taylor, supra, 43 Cal.App.5th at p. 402.)
Nothing in the record suggests defendant would not be able to work while serving his sentence. At the time of his arrest, defendant was 37 years old and earning about $1,500 per month.
We assume defendant will obtain a prison job paying the minimum. We also assume that the $900 restitution fine will remain outstanding, which will leave defendant with $5.40 per month to settle the $140 in assessments. (Taylor, supra, 43 Cal.App.5th at p. 402.) At that rate, defendant will pay off the assessments in 26 months into his seven-year sentence. Accordingly, defendant "will have sufficient time to earn these amounts during his sentence, even assuming [he] earns nothing more than the minimum." (People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) And because defendant will be in his mid-40s when he is released, we conclude defendant will be able to pay the assessments with future earnings. (Ibid.; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [court may consider defendant's future earnings in prison and after release in determining defendant's present ability to pay]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant's future ability to pay, including his ability to earn wages while in prison]; People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay the fine, it would take a very long time, and the fine might never be paid].) On this record, any Dueñas error was harmless beyond a reasonable doubt. (People v. Jones, supra, at p. 1035.)
D. Senate Bill No. 136
After this case was fully briefed, the parties filed supplemental briefs on the applicability of recently enacted Senate Bill No. 136. Senate Bill No. 136 amended section 667.5, subdivision (b), which now limits one-year prior prison term enhancements to convictions for certain sexually violent offenses. (See People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) Senate Bill No. 136 became effective on January 1, 2020. (People v. Jennings (2019) 42 Cal.App.5th 664, 680.)
Defendant thus contends—and the People agree—that his one one-year enhancement for his prior prison term should be stricken under Senate Bill No. 136. We agree with the parties.
The trial court imposed a one-year enhancement for defendant's prior prison term. However, defendant's prior prison term was for a conviction on a non-violent felony evasion offense (Veh. Code, § 2800.2). Accordingly, defendant is entitled to have the one-year enhancement for this prior prison term stricken under Senate Bill No. 136 so long as it applies retroactively.
We agree with the parties that Senate Bill No. 136 applies retroactively to defendant's case. Under In re Estrada (1965) 63 Cal.2d 740, unless the Legislature provides otherwise, ameliorative legislation applies retroactively to all non-final judgments that are not final when the legislation goes into effect. Defendant's judgment was not final on January 1, 2020, when Senate Bill No. 136 went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) Defendant is therefore entitled to relief under Senate Bill No. 136. (See People v. Jennings, supra, 42 Cal.App.5th at pp. 680-681 [holding Senate Bill No. 136 applies retroactively].)
Defendant urges us to strike the enhancement, whereas the People argue the case should be remanded so the trial court can resentence defendant. We agree with the People. Because the trial court did not impose the maximum possible sentence, the trial court could reassess defendant's total sentence on remand based on the prison prior enhancement being stricken. (See People v. Lopez, supra, 42 Cal.App.5th at p. 342 ["Because the trial court imposed the maximum possible sentence, there is no need for the court to again exercise its sentencing discretion" due to Senate Bill No. 136]; People v. Buycks (2018) 5 Cal.5th 857, 896 fn.15 ["Because the resentencing court had imposed the maximum possible sentence, regardless of whether the two-year on-bail enhancement was stricken, there is no need to remand the matter to the trial court to exercise its sentencing discretion anew."].) We therefore conclude remand is appropriate for the trial court to resentence defendant in light of Senate Bill No. 136. (See People v. Jennings, supra, 42 Cal.App.5th at p. 682 [remanding for resentencing in part because defendant was entitled to have enhancements stricken under Senate Bill No. 136].)
IV.
DISPOSITION
The judgment of conviction is affirmed. The sentence is vacated and remanded with directions to strike the one-year enhancement for defendant's prison prior and to resentence defendant accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. FIELDS
J.