NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1358434)
An amended information charged defendant Russell Michael Hartnett with assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4) - count 1), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) - count 2) and eight counts of violating a stay away order (Pen. Code, § 166, subd. (c)(1) - counts 3-10). As to count 2, the information alleged that defendant personally inflicted great bodily injury under circumstances involving domestic violence (Pen. Code, § 12022.7, subd. (e)). A strike prior (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), a serious felony prior, and two prison priors (Pen. Code, § 667.5, subd. (a)) were also alleged. The jury found defendant guilty of count 1 and counts 3 through 10. The trial court found the strike prior and two prison prior allegations true. The trial court sentenced defendant to 10 years in prison.
Defendant contends: (1) the trial court abused its discretion when it excluded evidence of the complaining witness's allegedly false domestic violence report; and (2) the trial court erred when it admitted evidence of uncharged incidents of domestic violence. The judgment is affirmed.
I. Statement of Facts
A. Prosecution Case
Cynthia Przemielewski testified that she met defendant in November 2011 and they became engaged to be married in February 2012. When defendant spent the night, they slept in a camper in the driveway at Cynthia's house. A few days before the incident on June 2, 2013, defendant told Cynthia that "he just broke up" with her. Though they reconciled the following day, they continued to argue about her male friends. Cynthia eventually asked him to leave and he agreed to do so. However, about an hour later, she saw that the lights were on in the camper. She entered the camper and he was asleep on the couch and talking in his sleep. Since defendant did not believe that he talked in his sleep, Cynthia decided to record him on her cell phone.
Cynthia was convicted of petty theft in 2010.
When defendant did not respond to her calling his name, Cynthia put her cell phone on a shelf in the camper and activated the record function. She tried to talk to defendant, but she did not understand what he was saying. Defendant woke up, called her some names, and threatened to hit her. After Cynthia asked him to leave, defendant hit her with the palm of his hand on the left side of her face. She ordered him to leave and told him that he was going to jail for hitting her. At that point, she realized that her cell phone was still recording. She told him that he was in trouble, because she had the incident on video. Defendant hit her again and prevented her from leaving the camper. He pulled her back into the camper, where she fell onto her back. Defendant laughed as he stomped on her body with his steel-toed boots. Cynthia screamed for help. When defendant took a step back, she scooted across the floor. She saw a flash of silver and felt a blow to the top of her head by a metal object. She then left the camper and ran towards a neighbor's house.
The prosecutor played the video from Cynthia's cell phone for the jury. The beginning of the video shows defendant sleeping on a couch. Cynthia eventually asks him if he is going to leave. She tries to wake him up and pokes him repeatedly in the stomach. They exchange accusations. Defendant asks, "You wanna fight?" The video does not show defendant hitting Cynthia. However, when Cynthia says, "You just hit me in the face," defendant responds, "Yeah, in the face." The video ends with the following exchange: "CYNTHIA You fuckin' hit me in the face again. [¶] [DEFENDANT] (Inaudible), whoo-hoo-hoo. [¶] CYNTHIA Stop fuckin' hitting me. [¶] [DEFENDANT] (Laughs.) [¶] CYNTHIA Stop it. [¶] [DEFENDANT] (Laughs.)"
Jacklyn Lacy, one of Cynthia's neighbors, saw Cynthia's camper "swaying back and forth extremely violently" and heard Cynthia screaming, "Please help me. Somebody help me." Lacy called 911. Tylen Daron Gomez, another neighbor, was awakened by a woman who was screaming, "Help." He went outside and saw Cynthia, who was trembling and had blood on her head. After speaking to her, Gomez awakened Cynthia's son, David Przemielewski. David spoke with his mother and confronted defendant. David lunged toward defendant, but Gomez restrained him. Defendant left.
When the police arrived, Cynthia was reluctant to speak with them. She told them that there had been no prior domestic violence. She explained that she was going to marry defendant and did not want to get him in trouble. She also told Officer James Soh that defendant hit her in the head with a stool.
Cynthia was taken to the hospital by ambulance where she reported that the top of her head hurt and the left side of her body was numb. A CAT scan showed mild swelling on the top of her head. An X-ray of her left hand showed no fracture or dislocation. She received a staple to close the one-centimeter wound to her head. At the time of trial, Cynthia was still experiencing pain on her left side and tenderness where the staple was located.
A restraining order was issued against defendant, but he wrote to Cynthia from jail eight times between June 12, 2013, and December 11, 2013.
Cynthia also testified regarding two uncharged incidents of domestic violence. In February 2013, defendant and Cynthia were parked outside the Shane Company and intended to shop for an engagement ring when they began arguing about her male friends. Cynthia, who was in the front passenger seat, grabbed the keys and tried to exit the car. Defendant straddled her in her seat and took the keys from her. She did not report the incident to the police. She did not tell her son, because "then [her] son wouldn't like" defendant.
In April 2013, Cynthia was ill. When defendant made comments about her illness, which were "derogatory" and brought up her past relationships, she told him to shut up. Defendant lunged at her, grabbed her throat, squeezed it, and told her, "Shut the fuck up." Defendant then grabbed a pillow, put it over her face, and applied pressure. After Cynthia's sister heard the scuffle and entered the next room, defendant released the pressure and got off of Cynthia. Cynthia then threw a football trophy at defendant, but missed. Cynthia did not report the incident to the police or tell her son. Cynthia's sister encouraged her to overlook the incident, because "times were stressed" for defendant. Cynthia continued her relationship with defendant, because he promised that the physical abuse would not happen again.
B. Defense Case
Brian Mantay testified that Cynthia was his ex-girlfriend and he had known her for about seven years. According to Mantay, her reputation was "[n]ot very positive as far as anything truthful, she's got a lot of issues as far as protecting herself." Mantay became friendly with defendant when they were in custody together. He also wrote a letter to Cynthia in which he stated that he and defendant had "become good friends." However, he testified that this statement was not true.
Mantay was convicted of assault with a deadly weapon in February 2013.
Thomas Przemielewski, Cynthia's brother, testified that she was not a truthful person, had a reputation for being untruthful, and had lied to him "quite a few" times.
Dr. Kadeer Halimi testified as an expert in emergency medicine and the interpretation of medical records. According to Dr. Halimi, there was nothing in Cynthia's records to indicate that there was any swelling to her head. In his opinion, the medical records were consistent with one injury to the head, not multiple injuries to the head. He also stated that nothing in the medical records indicated that Cynthia had been "stomped all over [her] body."
A. Allegedly False Report of Domestic Violence
Defendant contends that the trial court violated state evidentiary law and his federal constitutional rights to due process and a fair trial when it excluded evidence that Cynthia had falsely accused Mantay of domestic violence.
Prior to trial, defendant sought to present evidence that Cynthia had made false accusations against her former boyfriend. According to defendant, Mantay would testify regarding "an incident when he borrowed her car, and when she found out he had another girlfriend in the car she made a false report and had him arrested, and also made false allegations of domestic violence against him."
The prosecutor opposed the motion. She explained: "Cynthia . . . was dating Brian Mantay in 2010. On February 2nd of 2010, she alleges that Brian Mantay beat her up. She did not report this on February 2nd of 2010. [¶] Couple of days later, [Cynthia] noticed that her car was gone. She called Brian Mantay, her then-boyfriend, who refused to return the car. [¶] On February 5th of 2010, [Cynthia] got a call from a male who was Brianna McAvoy's boyfriend, and that male told Cynthia that Brianna, his girlfriend, and Brian Mantay, Cynthia's boyfriend, were together and were cheating on both of them and were together in Cynthia's car. [¶] On February 5th of 2010, Cynthia called the police and reported that her car was stolen by Brian Mantay and also reported the domestic violence incident that happened three days later. [¶] The police arrested Brian Mantay in Cynthia's car on February 5th of 2010. Brianna was driving the car and Brian Mantay was in the passenger seat. [¶] The District Attorney's Office . . . declined to issue a case on the [auto theft] and declined to issue [on] the February 2nd [domestic violence incident]. And they declined to do so because they felt, according to the police report, that there w[ere] credibility issues with Cynthia . . . because she told the police that she did not know Brianna. When, in fact, the police looked at Brianna's text messages on her phone where Cynthia had texted her that 'you're dead' and things like that. [¶] What Cynthia would testify to here is that she did not know Brianna, she did not lie, and that Brianna's boyfriend, when he called Cynthia that same day on February 5th of 2010, gave her, Brianna's . . . phone number and she would testify that when [she] called Brianna to try to get her car back, no one answered and so she texted these things . . . out of anger because Brianna was cheating . . . with her boyfriend. [¶] As I cited in my motion in limine, I don't think that the defense that the District Attorney's opinion of this victim Cynthia based on a police report alone is relevant and I don't think the fact our office did not charge the case is relevant to these proceedings."
When the prosecutor argued that Mantay's testimony would necessitate "a mini trial on a 2010 case," the trial court asked her to elaborate. The prosecutor stated: "If Brian Mantay was permitted to testify about this 2010 case, then I would, in addition to questioning Cynthia about it, I would call the police officer that arrested him on the [auto theft] to say that yes, he was in the car but the car was not registered to him. I would also call Brianna [McAvoy] to testify that she did not know Cynthia and that they had never really met before. I would also call Brianna's boyfriend to explain how he called Cynthia, in turn, called Brianna, why he believed that Brian Mantay and Brianna were in a sexual relationship and cheating at the time."
Defense counsel countered: "I don't think all those witnesses would be necessary. It's my position that calling Mr. Mantay and everything him testify[ing] regarding the filing of what was a false report is highly probative of the complaining witness' propensity and knowledge and experience in doing that, just as she did to my client in this case. And I'm not looking for the district attorney's opinion as to why . . . they reached the decision to not file in this case, but, rather, . . . that it was a false report that was done for reasons other than the actual victimization of the complaining witness, and, therefore, I feel it's more probative than being in danger of any of the cautions anticipated in the weighing factors the Court is using in its 352 analysis."
The trial court ruled that Mantay could testify as to Cynthia's character for untruthfulness, but it would not "permit him to testify to filing false . . . police reports." The trial court concluded that the 2010 incident would "be excluded due to the undue consumption of time [and] confusion to the jury as to what the issues are" in the present case.
Evidence Code section 1103, subdivision (a) provides in relevant part: "In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character." The admission of the victim's character evidence pursuant to section 1103 is subject to evidentiary rule set forth in section 352. (People v. Wright (1985) 39 Cal.3d 576, 587-588.) "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.)
All further statutory references are to the Evidence Code.
This court reviews the trial court's ruling under the deferential abuse of discretion standard. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Under this standard, " 'a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
Defendant argues that the proposed testimony would not have necessitated undue consumption of time or confused the jury. He points out that since Cynthia and Mantay testified at trial, there was no issue of bringing in other witnesses. He also argues that the evidence would not have confused the jury, because it focused on Cynthia's credibility.
However, defendant's arguments assume that Mantay's testimony regarding the prior incident was true. There was no such concession by the prosecutor. Here, the admission of Mantay's testimony would have involved a mini-trial on whether Cynthia's allegations against him were false, including why the police had not believed Cynthia's version of events. As the prosecutor pointed out, the determination of what occurred between Cynthia and Mantay would have involved not only the testimony of Cynthia and Mantay, but also the testimony of the officer who arrested McAvoy, McAvoy, and McAvoy's boyfriend. Thus, the issue of whether Cynthia had falsely accused Mantay had the potential for confusing the jury and consuming an undue amount of time.
Defendant argues that People v. Adams (1988) 198 Cal.App.3d 10 is instructive. In Adams, the defense sought to establish that the victim agreed to have sex with the defendant in exchange for drugs, but when the defendant refused to give her the drugs, she accused him of rape. (Id. at p. 15.) The defense sought to introduce evidence of two instances in which the victim had previously falsely accused two men of rape, but the trial court sustained the prosecutor's objection to any evidence of the victim's specific instances of misconduct to impeach her. (Id. at p. 16.) The reviewing court held that it was error to exclude evidence of the prior false accusations and reversed the judgment. (Id. at pp. 18-19.) In contrast to the present case, the prosecutor did not claim in Adams that the victim's prior accusations were true.
Relying on People v. Neely (1964) 228 Cal.App.2d 16 (Neely), People v. Franklin (1994) 25 Cal.App.4th 328 (Franklin), and People v. Tidwell (2008) 163 Cal.App.4th 1447 (Tidwell), defendant also points out that a "complaining witness's prior false charges of criminal activity have routinely been admitted in California courts to impeach the prosecution's witness."
In Neely, supra, 228 Cal.App.2d 16, the defendant was convicted of attempted rape. (Id. at p. 17.) The victim testified that she did not know the meaning of the words "sexual intercourse" and "rape," but she denied that she had ever consented to intercourse with a man. (Id. at p. 18.) When the defense began to cross-examine the victim concerning past complaints of rape, the trial court sustained the prosecutor's objection. (Ibid.) The reviewing court reasoned: "[I]f such past complaints of rape were in fact true, they would have no relevancy in the trial of the charge against appellant. If on the other hand such charges were false, then their relevancy is obvious [citations]. Here the record shows that [the victim] was a mentally ill person who had been in the Napa State Hospital for several years. Her testimony indicates some uncertainty and confusion concerning the exact nature of her charges against appellant. The evident purpose of the cross-examination was to probe the state of mind of the prosecutrix, in the hope of establishing the falsity of her past complaints of rape, and the likelihood that the charge against appellant was untrue." (Id. at pp. 18-19.) Thus, the reviewing court concluded that the trial court erred when it did not allow the cross-examination, but the error was not prejudicial. In contrast to Neely, here, the admission of Mantay's testimony would have involved more than the cross-examination of Cynthia about the prior allegations.
In Franklin, supra, 25 Cal.App.4th 328, after the five-year-old victim stated that the "defendant had licked her 'private' and made her lick his 'private,'" he was charged with sexual abuse. (Id. at pp. 330-331.) This court held that it was error to exclude the victim's false statement that her mother " 'had come into her room the night before and had licked her privates' . . . ." (Id. at p. 335.) However, the error was found harmless, because the evidence was cumulative. (Id. at p. 337.) In Franklin, the prior accusation by the victim and her accusation about the charged offense was so similar that it tended to support the defendant's contention that the accusations were false. No such similarity exists in the present case.
In Tidwell, supra, 163 Cal.App.4th 1447, the defendant was charged with several sexual offenses and he sought to impeach the victim with evidence of two prior false complaints of rape. (Id. at pp. 1451-1452.) The court in Tidwell concluded that the evidence was admissible under section 1103, but the trial court did not abuse its discretion in excluding the evidence under section 352. (Tidwell, at pp. 1456-1458.) The reviewing court reasoned: "The defense was unable to obtain evidence from the men that [the victim] accused, and inferences could be drawn either way from the circumstances of the prior incidents and [the victim's] statements concerning the incidents. In addition to the weaknesses in the evidence concerning falsity of the rape complaints, admitting the evidence would have resulted in an undue consumption of time as the defense attempted to bolster its view and the prosecution introduced evidence that Crawford had raped another female student. We therefore cannot say that the trial court abused its discretion in excluding the evidence based on the weak nature of the evidence of falsity of the complaints and the confusion of the jury and consumption of time it would have engendered for the parties to embark on the task of litigating the truthfulness of [the victim's] prior complaints." (Id. at p. 1458.) Similarly, here, though Mantay was available to testify, the parties would have also litigated the truthfulness of Cynthia's prior accusations.
Relying on People v. Burrell-Hart (1987) 192 Cal.App.3d 593 (Burrell-Hart), defendant argues that the "concern about undue consumption of time is a red herring." In Burrell-Hart, the victim alleged that sometime after she had a disagreement with the defendant at the bar where they had both worked, the defendant assaulted and raped her. (Id. at p. 596.) The defense sought to admit testimony that the victim had also recently made a prior false report of rape or attempted rape about a customer with whom she had had a disagreement at the same bar. (Ibid.) The victim testified that she had had a disagreement with the customer and that she told someone at the bar about the incident, but she never told her that the customer had raped or tried to rape her. (Id. at pp. 596-597.) The Burrell-Hart court reasoned: "Although the proffered evidence here was conflicting with respect to whether [the victim] had even accused [the customer] of having tried to rape her, and there was at least some dissimilarity in the incidents since [the victim] never reported [the customer's] incident to the police, the evidence of prior allegedly false accusations is highly relevant. Moreover, since the evidence was to be presented by the testimony of three witnesses, two of whom testified anyway, the presentation of said evidence would not consume an undue amount of time. Nor would the jurors necessarily be confused or misled if they were given the opportunity to compare the circumstances of this case with [the customer] incident to determine if the victim lied and would do so again in similar circumstances. Accordingly, since the trial court's discretion should 'favor the defendant in cases of doubt' (People v. De Larco (1983) 142 Cal.App.3d 294, 306 . . . ), the trial court properly should have admitted this evidence." (Burrell-Hart, at pp. 599-600.) The reviewing court found the error was harmless. (Id. at p. 600.) Burrell-Hart is distinguishable from the present case. As previously discussed, here, three additional witnesses would have testified about the circumstances of the prior report. Moreover, unlike in Burrell-Hart, the circumstances of this case and Cynthia's prior report were not sufficiently similar to support defendant's contention that both allegations were false.
In sum, we conclude that the trial court did not abuse its discretion in excluding evidence of the allegedly false report of domestic violence.
Defendant also contends that the exclusion of this evidence violated his rights to due process and a fair trial under the Fourteenth and Sixth Amendments of the United States Constitution. Though the Attorney General argues that defendant's federal constitutional claims have been forfeited, we need not resolve this issue. Assuming that defendant's claims have been preserved, he cannot show a constitutional violation. "The 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights.' [Citation.]" (People v. Hovarter (2008) 44 Cal.4th 983, 1010.) Since the exclusion of the challenged evidence in this case was permissible under state rules of evidence, it did not rise to the level of a federal constitutional violation.
B. Uncharged Incidents of Domestic Violence
Defendant contends that the trial court erred when it allowed Cynthia to testify regarding two uncharged incidents of domestic violence.
Prior to trial, the prosecutor sought to present evidence of defendant's prior incidents of domestic violence against Cynthia under section 1109. During the hearing on the in limine motions, defendant argued that the prior acts were "inherently unreliable. They were not reported. They were not documented. There was no arrest. There was no conviction. As far as we know, there's no corroboration of any kind. No independent or percipient witnesses, no physical evidence." He also pointed out that Cynthia had denied that there had been any prior acts of domestic violence to the police officer responding to the charged incident.
Defendant initially opposed admission of the evidence on the ground that there had been a discovery violation. Defendant subsequently withdrew the objection on this basis.
The trial court ruled that it would permit Cynthia to testify about the two prior incidents pursuant to sections 1109 and 352. Regarding defendant's unreliability argument, the trial court later commented that "the fact that there may be contradictions that there's impeachment potential, that's what cross-examination is all about, so the defense will have something to say about those various inciden[t]s."
Evidence that a defendant has committed a prior crime other than the charged offense is generally inadmissible to prove his or her disposition to commit the charged offense. (§ 1101.) However, section 1109 is one of the exceptions to this general rule. Under section 1109, the defendant's other acts of domestic violence are admissible to prove propensity to commit the charged offense if the evidence is not inadmissible under section 352. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1024.) Section 1109 "reflects the legislative judgment that in domestic violence cases, as in sex crimes, similar prior offenses are 'uniquely probative' of guilt in a later accusation. [Citation.] Indeed, proponents of the bill that became section 1109 argued for admissibility of such evidence because of the 'typically repetitive nature' of domestic violence. [Citations.] This pattern suggests a psychological dynamic not necessarily involved in other types of crimes. [Citation.]" (People v. Johnson (2010) 185 Cal.App.4th 520, 531-532, fns. omitted.)
Section 1109 states that "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not made inadmissible pursuant to Section 352." (§ 1109, subd. (a)(1).) --------
Section 352 provides that "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." " ' "The 'prejudice' referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " ' [Citation.] Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s). [Citations.]" (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)
Here, the prior acts were not more inflammatory than the charged conduct. Unlike the charged conduct, neither of the prior acts caused significant or lasting injury. (People v. Johnson, supra, 185 Cal.App.4th at p. 534 [charged conduct was more inflammatory than the prior acts when it resulted in more significant injury].) In addition, the prior incidents also involved inappropriate conduct by Cynthia, that is, grabbing defendant's car keys and throwing a football trophy at him, which tended to lessen the prejudicial impact of defendant's prior acts. There was also no indication that the jury would confuse the prior acts with the charged conduct, since Cynthia testified about the prior incidents and the charged conduct chronologically and specified the month and year of each incident. The prior acts of domestic violence were recent and had occurred two and four months before the charged conduct. Though defendant's prior acts did not result in convictions, both incidents were very probative of defendant's tendency to be violent towards Cynthia. The prior acts occurred after defendant and Cynthia argued about her prior relationships and the charged conduct occurred shortly after they argued about the same topic. Accordingly, the trial court did not abuse its discretion when it admitted the evidence of defendant's prior acts of domestic violence.
Defendant contends that the section 1109 evidence was unreliable, because it was not corroborated and Cynthia had not told her son about the prior incidents. This factor alone does not compel exclusion of the prior acts evidence. As the court in People v. Jennings (2000) 81 Cal.App.4th 1301 (Jennings) observed, the Legislature enacted section 1109, because "domestic violence is quintessentially a secretive offense, shrouded in private shame, embarrassment and ambivalence on the part of the victim, as well as intimacy with and intimidation by the perpetrator" and such cases often focus on victim credibility. (Jennings, at p. 1313.)
Defendant argues that the admission of his prior acts of domestic violence and the exclusion of the prior false report against Mantay "skewed the evidence against [him] and infringed upon his rights to due process and a fair trial . . . ." He claims that "the jury was presented with testimony which, though bereft of any indicia of reliability, had been sanitized of evidence that raised a serious question regarding [Cynthia's] credibility and created a false image of her probity." We disagree with defendant's characterization of the record. Here, the defense challenged Cynthia's credibility in several ways. Both Mantay and Cynthia's brother testified regarding Cynthia's character for truthfulness. The defense impeached Cynthia with her prior conviction for petty theft and her preliminary hearing testimony. The defense questioned her regarding her use of methamphetamine during the week prior to the charged incident and her sale of defendant's motorcycle while he was in custody on this case. The defense also questioned Cynthia about her willingness to lie and her lies to the police on the night of the charged incident. In addition, the defense questioned her about initially giving the prosecutor an edited version of the cell phone video. Based on this record, the trial court's rulings did not impermissibly infringe on his rights to due process or to confront witnesses.
The judgment is affirmed.
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________