Opinion
C087906
02-11-2020
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO GRANADINO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF00057)
Shortly before 1:25 a.m. on New Year's Day 2018, defendant Francisco Granadino physically attacked and threatened to kill his girlfriend while highly intoxicated. Following a jury trial, he was found guilty of two counts of inflicting corporal injury on his girlfriend (Pen. Code, § 273.5, subd. (a)) and one count of making a criminal threat (§ 422, subd. (a)). In a bifurcated proceeding, the trial court found that he had a prior serious felony conviction (§ 667, former subd. (a)(1)) that qualified as a strike under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12), and had served one prior prison term (§ 667.5, former subd. (b)—for criminal threats). The trial court sentenced him to an aggregate term of 14 years 4 months in state prison, which included the one-year enhancement under section 667.5, former subdivision (b), which was stayed pursuant to section 654. Defendant timely appealed.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends that insufficient evidence was presented at trial to support his corporal injury conviction based on injury as a result of strangulation, and that the trial court prejudicially erred in admitting a statement he made during a jail phone call. Defendant further contends that the matter must be remanded to allow the trial court to exercise its newly-granted discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess. (Senate Bill 1393); Stats. 2018, ch. 1013, §§ 1, 2) and determine whether to strike or dismiss the five-year enhancement imposed under section 667, former subdivision (a)(1). Finally, defendant contends that, pursuant to the holding in People v. Dueñas (2019) 30 Cal.App.5th 1157, 1168, 1172 (review on own motion declined and request for depublication denied Mar. 27, 2019, S254210) (Dueñas), the matter must be remanded to allow the trial court to determine his ability to pay certain fines and assessments imposed at sentencing.
We remand for the trial court to exercise its discretion and determine whether to strike or dismiss the five-year enhancement imposed under section 667, former subdivision (a)(1). Although not raised by the parties on appeal, the trial court should strike the one-year prior prison term enhancement (§ 667.5, former subd. (b)) that was stayed, in light of Senate Bill No. 136 (2019-2020 Reg. Sess. (Senate Bill 136); Stats. 2019, ch. 590, § 1), which became effective January 1, 2020. In all other respects (including with respect to the imposition of fines and assessments), the judgment is affirmed.
Any aggrieved party may petition for rehearing. (Gov. Code, § 68081.)
FACTUAL BACKGROUND
We summarize only the pertinent facts. Additional information relevant to the claims on appeal is discussed below.
In January 2018, A.K. and defendant lived together and were in a dating relationship. At that time, they had been dating for two and a half years.
Shortly before 1:25 a.m. on New Year's Day 2018, defendant approached A.K. after consuming about 20 beers and asked her to come inside so they could go to bed. A.K. refused because they had not been getting along, and because he was drunk and she did not want to "deal with him." She intended on staying outside until he fell asleep.
When defendant pulled on A.K., she pushed him away. He then grabbed her hair and said, "[B]itch, [you] better listen." He also threatened to "punch [her] face in." When A.K. attempted to escape his grasp, he grabbed her neck and hair. During the altercation, defendant grabbed A.K.'s neck three or four times and squeezed. At one point, he threatened to kill her while his hands were around her neck. He also hit her in the mouth one time after she pushed his hand away from her neck. Eventually, A.K. was able to get away from defendant. She fled into the house, locked the door, and called 911.
The 911 call was played for the jury. During the call, A.K. said that her boyfriend (i.e., defendant) was trying to "beat [her] up." She explained that he had pulled her hair and was "smackin' on [her]." She indicated that he had smacked her one time in the mouth with an open hand. When A.K. was asked about prior incidents of abuse, she indicated that defendant had physically assaulted her three other times, including an incident where he broke one of her ribs. She explained that he hit her in the back, causing her ninth rib to break. She further explained that she lied to medical personnel at the hospital about the cause of this injury because defendant had threatened to hurt her son if she told the truth. A.K. told the 911 dispatcher that defendant was banging on the door and saying "[l]et me in, bitch."
Deputy Cody Stothers of the Butte County Sheriff's Office was dispatched to the scene and arrived while A.K. was on the phone with the 911 dispatcher. Upon his arrival, Stothers spoke with defendant, who exhibited noticeable signs and symptoms of being under the influence of alcohol—he had a hard time walking and his speech was slurred. Stothers also noticed that defendant had a lump under his left eye. When asked, defendant indicated that he thought A.K. was upset because he had called her a bad name. Defendant said that he pushed A.K. after she pushed him, and that A.K. had punched him three times as he was trying to bring her inside the house.
After Deputy Stothers listened to A.K. describe the altercation, he looked at her neck and noticed a "purplish" bruise where A.K. indicated defendant had grabbed her. The color of the bruise suggested to Stothers that it was a recent injury. A.K. also had scratches on her wrist, which she claimed were caused when she pushed defendant away from her. Stothers took photographs of these injuries. He also photographed several other bruises on A.K.'s neck. Based on the "yellowish" color of these bruises, Stothers believed they were not as recent as A.K.'s other injuries.
When A.K. was shown the photographs at trial, she said that she saw marks on her neck, including a reddish-purple mark, bruises on her neck, and scratches on her wrist. She indicated that she did not have the marks or bruises on her neck prior to the altercation with defendant, and that the marks and bruises were in the area where defendant had grabbed her. She also said that she did not have scratches on her wrist prior to the altercation with defendant.
At trial, a prosecution expert in nonlethal strangulation testified that the bruising and marks depicted on the photographs taken by Deputy Stothers were consistent with strangulation. A defense expert in forensic pathology and strangulation disagreed. She opined that the "yellow-brown" bruises on A.K.'s neck were at least a week old, and that the vertical shape of the bruises on the right side of her neck were atypical or inconsistent with strangulation. As for the red mark on A.K.'s neck (which was described as reddish-purple by A.K. and purple by Deputy Stothers and the prosecution's expert), the defense expert stated that she could not conclusively determine what it was, due to the poor quality of the photograph depicting the mark and because A.K.'s hair was obscuring the mark. She speculated that the red mark could be an inflamed hair follicle, a pimple, or a bite. However, she acknowledged that it was different than the other bruises and indicated that it was possible the red mark was a bruise caused by a finger. When asked, the defense expert stated that she did not observe any petechiae (i.e., burst capillaries) in any of the photographs, which she noted is common in victims of strangulation.
DISCUSSION
1.0 Sufficiency of the Evidence
Section 273.5, subdivision (a) states, "Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony . . . ." As relevant here, subdivision (b) states that subdivision (a) applies if the victim is someone with whom the offender has a dating relationship. (§ 273.5, subd. (b)(3).) Subdivision (d) defines " 'traumatic condition' " to mean "a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force." (§ 273.5, subd. (d).)
"Section 273.5 is violated when the defendant inflicts even 'minor' injury." (People v. Wilkins (1993) 14 Cal.App.4th 761, 771.) One of the legislative purposes of section 273.5 was to "clothe[] persons . . . in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed." (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952.)
Defendant contends there was insufficient evidence presented at trial to support his corporal injury conviction based on injury as a result of strangulation (i.e., count 1). Defendant argues that substantial evidence does not support the jury's conclusion that he inflicted corporal injury resulting in a traumatic condition. According to defendant, the "weight" of the testimony indicated that the bruising on A.K.'s neck, aside from one small circular mark, was at least one week old at the time of the incident, and the recent circular mark did not constitute substantial evidence to support the conviction because it could not conclusively be identified as a bruise.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citations.] [¶] ' "Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" [Citation.]' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Viewing the evidence in the light most favorable to the People, we conclude that substantial evidence supports the jury's guilty verdict on count 1. A.K. testified that defendant placed his hands around her neck several times and squeezed during the altercation that occurred on New Year's Day 2018. When Deputy Stothers arrived at the scene shortly thereafter, he noticed a purple bruise on A.K.'s neck, which indicated to him that the injury had been recently inflicted. The prosecution's expert on nonlethal strangulation testified that the marks and bruises on A.K.'s neck were consistent with strangulation. A.K. testified that the marks and bruises were not on her neck prior to her altercation with defendant. On this record, a rational trier of fact could have concluded beyond a reasonable doubt that defendant inflicted corporal injury on A.K. as a result of strangulation. Contrary to defendant's suggestion, the defense expert's testimony does not demonstrate that there was insufficient evidence to support the verdict. The jury was not required to credit her testimony and could have reasonably believed A.K.'s account of the altercation, which was supported by other evidence.
Without citation to the record, defendant asserts that the prosecution's expert "initially claimed that the photographs supported his opinion that the victim had been choked or strangled. However, on further examination, [the expert] acknowledged the bruises were old and could not have been inflicted on the date alleged." Having independently reviewed the record, we note that it does not reflect that the prosecution's expert ever "acknowledged the bruises were old and could not have been inflicted on the date alleged." We caution counsel not to overstate or misrepresent the record under the guise of effective advocacy. Counsel is reminded that " ' "[h]onesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense." ' [Citations.] 'Counsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice.' " (Williams v. Superior Court (1996) 46 Cal.App.4th 320, 330.)
2.0 Alleged Evidentiary Error
At trial, A.K. testified about defendant's prior violent acts, including, among other things, a prior incident where he put his hands around her throat during an argument and an incident where he broke her ninth rib. The jury also heard the recording of the 911 call A.K. placed after her altercation with defendant on New Year's Day 2018. During that call, A.K. indicated that defendant had physically assaulted her three previous times, including an incident where he broke her ninth rib.
A former girlfriend of defendant also testified that defendant had been physically and verbally abusive to her during their relationship, including threatening to kill her while holding a box cutter.
Thereafter, the People filed a motion requesting permission to introduce evidence of jail phone calls defendant had made while incarcerated awaiting trial. The People argued that the evidence, which had been disclosed to the defense 10 days earlier, was not inadmissible due to late disclosure. The People further argued that the adoptive admission exception to the hearsay rule applied to at least one of the jail calls; specifically, the call wherein defendant failed to deny the accusation that he had broken one of A.K.'s ribs. Defendant filed a motion to exclude the jail phone call evidence on the ground that it was untimely disclosed in violation of the People's discovery obligations under the Penal Code.
At the hearing on the motions, defense counsel did not argue that any of the statements made by defendant during the jail phone calls constituted inadmissible hearsay. Instead, counsel sought exclusion of the evidence on the ground it was untimely disclosed. The trial court denied defendant's motion to exclude the evidence. In doing so, the court stated that it understood that defendant's statements on the jail phone calls would be "admissions of interest by parties in this case." The court went on to state that the jail calls will be allowed and "will not be considered hearsay, based upon the party's statement . . . exception to the hearsay rule." In response, defense counsel stated, without elaboration, "To save time and objections in front of the jury, would the court deem that objection as made at the time each of the calls is introduced as evidence?" The trial court replied, "Yes. The court will note that, and put it in the record."
On appeal, defendant argues that the trial court prejudicially erred in admitting a specific statement he made during one of the five jail phone calls played for the jury because the statement did not qualify as an adoptive admission. In the jail phone call at issue (which is the specific call referenced in the motion the People filed in the trial court), an unknown female caller is speaking with defendant. Although not entirely clear, it appears that defendant is instructing the female to take certain actions in an effort to alter a restraining order so that he could speak with A.K. In response, the female said, "Yeah, that ain't going to happen. Come on. She said that, uh, you broke her ninth rib." Defendant replied, "You can get her to talk to me."
We conclude that defendant has forfeited his claim of evidentiary error. The Supreme Court has " 'consistently held that the "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable.' " (People v. Partida (2005) 37 Cal.4th 428, 433-434 (Partida).) " 'The reason for the [objection] requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice.' " (Id. at p. 434.) It also affords the People the opportunity to establish its admissibility and the court to make a fully informed ruling. (Id. at p. 435.) "If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (Ibid.)
Here, the only specific objection defendant made regarding the jail phone calls was that they should be excluded as late discovery. At no time did he raise the objection he now asserts on appeal. He did not identify any particular portion of a jail phone call and object to it on the ground that it did not constitute an adoptive admission. Therefore, he did not preserve his evidentiary claim for appeal. (Evid. Code, § 353 [requiring record of objection that makes clear the specific ground of the objection]; see Partida, supra, 37 Cal.4th at pp. 433-434; People v. Saunders (1993) 5 Cal.4th 580, 589-590 [no consideration of erroneous rulings when objection could have been made but was not].)
In any event, even assuming the evidence was improperly admitted, defendant has failed to establish prejudice. He has not shown that there is a reasonable probability the results of the trial would have been more favorable to him absent the error. (See Partida, supra, 37 Cal.4th at p. 439 [applying People v. Watson (1956) 46 Cal.2d 818 (Watson) to analyze evidentiary error involving state law]; People v. Harris (2005) 37 Cal.4th 310, 336 ["the application of ordinary rules of evidence does not implicate the federal Constitution, and thus we review allegations of error under the 'reasonable probability' standard of [Watson]".) "[T]he Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (People v. Beltran (2013) 56 Cal.4th 935, 956.)
As an initial matter, we note that, prior to the admission of the jail phone calls, A.K. testified about the prior incident where defendant broke her ninth rib. In addition, the jury heard the 911 call wherein A.K. claimed that defendant had broken her ninth rib. Thus, the challenged jail phone call evidence was merely cumulative of evidence already before the jury. Moreover, defendant's guilt in this case turned on whether the jury believed A.K.'s testimony about her altercation with defendant, which was supported by the injuries observed and documented by Deputy Stothers on the night of the altercation and the testimony of the prosecution's expert. The only evidence presented by the defense was expert testimony directed at the corporal injury count based on injury as a result of strangulation. As for the red mark on A.K.'s neck (which was described as reddish-purple by A.K. and purple by Deputy Stothers and the prosecution's expert), the defense expert stated that she could not conclusively determine what it was due to the poor quality of the photograph depicting the mark and because A.K.'s hair was obscuring it. However, she acknowledged on cross-examination that it was different than the other bruises on A.K.'s neck and indicated that it was possible the red mark was a bruise caused by a finger. On this record, we conclude that any evidentiary error was harmless, particularly given the relatively strong evidence supporting the existing judgment and the comparatively weak evidence supporting a different outcome.
3.0 Senate Bill 1393
In 2018, defendant was sentenced to an aggregate term of 14 years 4 months in prison, which included a five-year enhancement for a prior serious felony conviction. Prior to 2019, trial courts had no authority to strike a serious felony prior that is used to impose a five-year enhancement under section 667, subdivision (a)(1). Senate Bill 1393 removed this prohibition. (Stats. 2018, ch. 1013, §§ 1, 2.) The legislation became effective January 1, 2019. (Cal. Const., art. IV, § 8, subd. (c).)
Defendant contends that Senate Bill 1393 applies to him because the statute is retroactive and applies to all cases not yet final as of its effective date where, as here, the record does not clearly indicate the trial court would not have exercised its discretion had the court known it had that discretion. The People concede that remand is appropriate, and we agree.
"Absent evidence to the contrary, amendments to statutes that reduce the punishment for a crime or vest in trial courts the discretion to impose a lesser penalty, such as Senate Bill 1393, apply to all defendants whose judgments are not final as of the amendment's effective date. [Citations.] When it enacted Senate Bill 1393, the Legislature did not indicate it intended the legislation to apply prospectively only. [Citation.] The act thus applies retroactively to this case.
"That finding is not the end of the matter. We are not required to remand to allow the court to exercise its discretion if 'the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement' even if it had the discretion." (People v. Jones (2019) 32 Cal.App.5th 267, 272-273.)
The record in this case contains no such evidence. Therefore, we will remand the matter for the trial court to exercise its discretion and determine whether to strike or dismiss the prior serious felony enhancement imposed under section 667, subdivision (a)(1).
4.0 Senate Bill 136
This case was fully briefed in July 2019. On October 8, 2019, the Governor signed Senate Bill 136, which amended section 667.5, effective January 1, 2020. (Stats. 2019, ch. 590, § 1; Cal. Const., art. IV, § 8, subd. (c); People v. Camba (1996) 50 Cal.App.4th 857, 865 [statute enacted at regular session of Legislature generally becomes effective on Jan. 1 of year following its enactment].) The bill amends section 667.5, subdivision (b) to provide, in pertinent part: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail . . . is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code . . . ." (Stats. 2019, ch. 590, § 1, italics added.) When defendant was originally sentenced, section 667.5, former subdivision (b) provided for an additional one-year term for a prior prison term, regardless of the underlying offense. (§ 667.5, former subd. (b).)
This court (in unpublished opinions) and another appellate court have concluded that Senate Bill 136's amendment to section 667.5, subdivision (b) applies retroactively to cases not yet final based on the Estrada rule (In re Estrada (1965) 63 Cal.2d 740, 748), and thus, defendant appears entitled to the ameliorative benefit of the amendment because his prior prison term—for criminal threats—was not for a sexually violent offense. (People v. Jennings (2019) 42 Cal.App.5th 664, 682.)
Although the parties did not raise this issue in appellate briefing, because we remand this matter for the trial court to address the five-year enhancement (§ 667, subd. (a)(1)), the trial court should modify the judgment by striking the one-year enhancement imposed and stayed for defendant's section 667.5, former subdivision (b) enhancement. 5.0 Dueñas-based Challenge
Defendant challenges the trial court's imposition of restitution fines as well as assessments for court operations and facilities. (§§ 1202.4, 1202.45, 1465.8; Gov. Code, § 70373.) Citing Dueñas, supra, 30 Cal.App.5th 1157, defendant argues that the imposition of these fines and assessments without express consideration of his ability to pay is a violation of his due process rights. He asserts that the matter must be remanded for the trial court to conduct an ability to pay hearing. We disagree.
Although it is defendant's burden to establish an inability to pay (accord, People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019, S257844 (Kopp); People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen)), defendant neither objected to the imposition of restitution fines and assessments generally nor asserted his inability to pay them (to refute the presumption that defendants capable of working who are serving a lengthy prison term will be able to pay assessments from prison wages (People v. Johnson (2019) 35 Cal.App.5th 134, 139)). As a result, existing authority would hold that defendant has forfeited the issue on appeal (Frandsen, at pp. 1154-1155), although there is also authority to the contrary (Johnson, at pp. 137-138; People v. Castellano (2019) 33 Cal.App.5th 485, 489). Rather than decide the issue of forfeiture, we will address the merits.
We may consider, as persuasive authority, the cases that have been granted review by our Supreme Court. (Cal. Rules of Court, rule 8.1115(e)(1).)
We note that the defendant in Dueñas had in fact sought a hearing on her ability to pay on constitutional grounds. (Dueñas, supra, 30 Cal.App.5th at pp. 1162-1163.)
Subsequent published authority has called the reasoning of Dueñas into question. As digested in People v. Hicks (2019) 40 Cal.App.5th 320 (review granted Nov. 26, 2019, S258946) (Hicks), Dueñas is premised on authority involving a right under due process of access to the courts, and a bar against incarceration for an involuntary failure to pay fees or fines. (Hicks, at p. 325.) However, a postconviction imposition of fees and fines does not interfere in any respect with the right of access to either the trial or appellate court. (Id. at p. 326.) The postconviction imposition of fees and fines also does not result in any additional incarceration, and therefore a liberty interest that due process would protect is not present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the question is whether due process generally otherwise compels the same result. (Hicks, at p. 327.) The People have a fundamental interest in punishing criminal conduct, as to which indigency is not a defense (otherwise, defendants with financial means would suffer discrimination). It would also be contrary to the rehabilitative purpose of probation if a court were precluded at the outset from imposing the payment of fees and fines as part of educating a defendant on obligations owed to society. (Id. at pp. 327-328.) "For the reasons set forth above, we conclude that due process does not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise." (Id. at p. 329.) Kingston, supra, 41 Cal.App.5th at page 279, agreed with Hicks.
The analysis of Dueñas in Hicks is adopted in People v. Kingston (2019) 41 Cal.App.5th 272, 279-281 (Kingston), and is paralleled in People v. Aviles (2019) 39 Cal.App.5th 1055, 1068-1069 (Aviles), People v. Caceres (2019) 39 Cal.App.5th 917, 927, and in the opinions of individual justices in People v. Santos (2019) 38 Cal.App.5th 923, 937-938 (dis. opn. of Elia, J.), and People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1034-1041 (conc. opn. of Benke, J.).
Aviles also found Dueñas to be wrongly decided, finding the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1061, 1067, 1069-1072; accord, Kopp, supra, 38 Cal.App.5th at p. 96, rev.gr.)
Therefore, we conclude defendant is not entitled to a remand for the trial court to consider his ability to pay these fines and assessments.
DISPOSITION
The matter is remanded for the trial court to exercise its discretion and determine whether to strike or dismiss the five-year enhancement imposed under section 667, subdivision (a)(1). Further, the trial court shall strike the one-year enhancement imposed and stayed under section 667.5, former subdivision (b). In all other respects, the judgment is affirmed.
/s/_________
Butz, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Hoch, J.