Peoplev.Mayorquin

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREEAug 11, 2011
B224619 (Cal. Ct. App. Aug. 11, 2011)

B224619

08-11-2011

THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO MAYORQUIN, Defendant and Appellant.

Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA362207)

APPEAL from a judgment of the Superior Court of Los Angeles County, Larry P. Fidler, Judge. Affirmed.

Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.

Francisco Mayorquin appeals the judgment entered following his conviction of assault with a deadly weapon committed for the benefit of a criminal street gang. (Pen. Code, §§ 245, subd. (a)(1), 186.22, subd. (b)(1)(B).) We reject Mayorquin's claim of insufficient evidence to support the criminal street gang enhancement and affirm the judgment.

Subsequent unspecified statutory references are to the Penal Code.

FACTS AND PROCEDURAL BACKGROUND

1. The prosecution's evidence.

a. The underlying incident.

On September 17, 2009, at approximately 7:30 a.m., 17-year-old Adalberto Ramirez, a member of the Florencia 13 gang, was walking on San Pedro Street to Fremont High School when an Astro minivan stopped near him. As Ramirez walked past the van, two males who were arguing exited the passenger side of the van. The males said something offensive Ramirez did not recall, then began walking behind Ramirez. Ramirez testified, "They were just quiet, looking at me." Ramirez turned and asked why the males were following him. The males smiled and Ramirez knew a fight was about to occur because of the looks on the faces of the males and the words they spoke, which included asking why Ramirez was "trippin.' " Ramirez argued with the males and a fight ensued. One of the males produced a "deadly weapon" he had been holding behind his right leg and stabbed Ramirez in the stomach. The males fled and Ramirez continued to school. After speaking with Los Angeles School Police Department Officers Juan Romo and Arthur Crescitelli, Ramirez was taken by ambulance to the hospital.

Officer Romo, a resident officer at Fremont High School, testified Ramirez was holding a blood soaked shirt over a puncture wound to his left side. Ramirez told Crescitelli a van approached him and two males exited the van. Ramirez reported that, when the males initially approached, they stated "DNA," which is a "street gang or crew." One of the males knocked books from Ramirez's hand and one stated, "I'm gonna give it to him good," before stabbing Ramirez. Romo had investigated tagging incidents involving DNA graffiti at Fremont High School and had heard that DNA was predominantly a tagging crew. Romo is aware that DNA is affiliated with criminal street gangs and that Florencia 13 is a rival of those gangs.

Los Angeles Police Officer Gorgonio Medina interviewed Ramirez at California Hospital on September 17, 2009. Ramirez said he was walking to school when two individuals exited an Astro van, approached him and said something that indicated they were from DNA, which Ramirez said was a local gang.

After leaving the hospital, Medina found a van on 73 rd Street that matched the vehicle description Ramirez had provided. Undercover officers placed the van under surveillance. Mayorquin and approximately six other individuals were detained near the van later that evening. Inside the van, Medina found a screwdriver and a wallet covered in DNA graffiti, including DNA monikers "Clowny," "Knocks," "Little One," and "Shy Boy."

Mayorquin told Medina he was a member of DNA and his moniker was "Little One." He said DNA has approximately 20 members and its territory is 73rd Street between Broadway and Main Street. Mayorquin said DNA was a tagging crew, not a gang but admitted younger DNA members were trying to get the gang "the 13." Getting "the 13" indicates the gang is affiliated with the Mexican Mafia.

On the evening of September 17, 2009, Ramirez selected Mayorquin from a photographic lineup and wrote, "I'm sure that number 3 was the one who stabbed me. I recognize his face."

At trial, Ramirez testified the individual who stabbed him was not in court. However, Ramirez admitted he did not want to testify. Ramirez conceded he made an identification from a photographic lineup on September 17, 2009, but denied seeing the person he identified in court. Ramirez denied he told Medina the individuals in the van were DNA members and the individual who stabbed him was a member of DNA. Ramirez did not recall telling Medina that Florencia 13 and DNA are rivals.

Ramirez similarly did not recall having told Officers Romo and Crescitelli the males "claimed" DNA when they got out of the van or that the male who stabbed him knocked books from his hands and said, "I'm going to give it to you good."

b. The testimony of the gang expert.

Los Angeles Police Officer Christian Carrillo testified as an expert witness. He has been assigned to the gang unit for one and a half years and DNA is one of the gangs with which he is familiar. As part of his job, Carrillo makes contact with gang members on a daily basis. He speaks to them about "[t]he gang itself, [its] membership, [its] rivals, anything that [the gang members will] talk . . . about." Carrillo had served approximately 30 gang search warrants and had testified as a gang expert five times. His expert testimony related to DNA, Florencia 13 and another gang.

Carrillo testified tagging crews sometimes move from vandalism to more serious criminal activity, at which time they take on the "essence" of a gang. At that point, the gang will "start attempting to gain their 13 or their approval from the Mexican Mafia," which is a prison-based gang that controls all Hispanic gangs in Southern California. In order to earn the 13, a gang must prove itself by engaging in violent acts to demonstrate its willingness to commit such acts at the request of the Mexican Mafia. The gang also must show it can contribute financially to the Mexican Mafia. The violent acts committed to gain the approval of the Mexican Mafia are typically directed at a rival gang, including gangs associated with the Mexican Mafia. This shows the gang is vicious and fearless and will commit violence against anyone the Mexican Mafia chooses.

DNA started as a tagging crew in 2004 and recently began to evolve into a gang by committing violent acts against other gangs. DNA has approximately 15 to 20 members. Carrillo personally has spoken to approximately 10 of these members. Two members of DNA have told Carrillo that DNA members are "putting in the work" to show their viciousness in an attempt to gain the approval of the Mexican Mafia.

Carrillo has seen photographs of DNA members making a hand sign in the shape of a "D" and has seen DNA graffiti in the neighborhood, although it did not include the number 13. Carrillo also has seen a DNA website that showed photographs of DNA graffiti and permitted postings from its members and rival gang members. Messages on the DNA website referred to the rivalry between DNA and Florencia 13. DNA's territory is on 73rd Street between Main Street and Broadway. The primary activities of DNA included assault with a deadly weapon, robbery and narcotic and weapons violations.

Carrillo testified admitted DNA member, Adrian Barrera, was convicted of attempted robbery in 2008. DNA member Esteban Cejas has been arrested for possession of ammunition, possession of marijuana for sale, criminal threat, battery on a peace officer, carrying a dirk or dagger and grand theft auto. Cejas also had sustained petitions as a juvenile. Carrillo obtained information about Cejas's arrest for criminal threat by speaking with the arresting officers and reviewing the arrest reports. Carrillo was present during a search of Cejas's home and at the time of Cejas's arrest for possession of ammunition and possession of marijuana for sale. Carrillo personally arrested Cejas for carrying a dirk or dagger.

Carrillo testified admitted DNA member Henry Contreras was arrested in 2004 for vandalism, in 2006 for being a minor in possession of a firearm and for vehicle theft, and in 2008 for grand theft. Carrillo found gang tagging in Contreras's room during a probation search of the home. DNA member Salvador Gutierrez was arrested for carrying a loaded firearm in 2006, and for vandalism in 2008 and 2009. DNA member Eric Aguirre was arrested for attempted burglary and possession of a controlled substance in 2009, and for discharging a firearm in public in January 2010. Ever Marroquin, a DNA associate, was arrested twice for weapons violations, and was arrested in 2005 and 2008 for assault with a deadly weapon and in January 2010 for discharging a firearm in public. The arrests for the weapons violations and for discharging a firearm in public were made in Carrillo's presence.

Carrillo did not personally know Mayorquin, but knew of him from speaking to other police officers after Mayorquin's arrest. Carrillo opined Mayorquin was a member of DNA based on Mayorquin's admission to Officer Medina that he was, and because Mayorquin was arrested in a known gang area with other gang members. Also, the charged offense occurred one block outside DNA's territory. Carrillo opined the instant crime was committed to benefit DNA, noting Mayorquin and his companion announced they were from DNA and Mayorquin said he wanted to "get him good." The crime sent a message to Florencia 13 and members of the community that DNA was now committing violent crimes against larger gangs, thereby creating an atmosphere of fear and intimidation within the community which made it less likely citizens would report crimes committed by DNA members. The attack also continued the feud between DNA and Florencia 13 and "up[ped DNA's] status" with the Mexican Mafia by showing DNA was willing to commit violent acts against Florencia 13, a well-established gang and the third largest gang in Los Angeles.

2. Defense Evidence.

Mayorquin testified in his own defense. The night before he was arrested, he stayed at the home of his friend, Oscar Rincon, on 73rd Street with Rincon and Ever Marroquin. On the morning of September 17, 2009, Marroquin, Rincon and Esteban Cejas left the house at 7:00 or 8:00 a.m. When Mayorquin awoke at 9 or 10 a.m., Marroquin and Rincon were present. They hung out in the house and in front of the house the entire day. Mayorquin was arrested in front of the house that evening. Mayorquin testified DNA is a tagging crew with approximately 20 members. Mayorquin has been a member of DNA for about three years. Although DNA members tag "everywhere," drink and smoke marijuana, they do not commit other crimes.

Mayorquin admitted Cejas, the youngest member of DNA, wanted DNA to get its 13. However, Mayorquin wanted DNA to "stay the way it is" because he did not want "problems with anybody else." Mayorquin admitted his moniker was "Little One" but testified DNA did not have hand signals and there was no feud between DNA and Florencia 13. Mayorquin denied he posted messages denigrating Florencia 13 attributable to "Lil One" on the DNA website.

3. Verdict and sentencing.

The trial court acquitted Mayorquin of attempted murder but convicted him of assault with a deadly weapon and found a criminal street gang enhancement allegation true. The trial court indicated it had no trouble concluding the assault had been committed "on behalf of the gang. You can't have much more than someone shouting out the name of their gang and stabbing somebody." The more difficult issue was whether one of DNA's primary activities was the commission of the offenses enumerated in section 186.22. In that regard, the trial court noted it properly could consider the current offense. Further, case law allowed a gang expert to express an opinion based on conversations with gang members, the expert's personal investigation of crimes committed by gang members, and information obtained from colleagues in law enforcement. The trial court concluded DNA was "a gang in transition." Noting the gang consisted of only 15 to 20 individuals, the trial court found it significant that at least four members, Mayorquin, Cejas, Marroquin and Aguirre, had committed qualifying offenses. Further, despite evidence suggesting not all members wanted DNA to become a gang, it had "done so." The trial court concluded the People had shown, beyond a reasonable doubt, one of the primary activities of DNA was the commission of the offenses enumerated in the statute and found the criminal street gang enhancement allegation true.

During voir dire, Mayorquin waived jury trial.

The trial court found Mayorquin had been convicted of robbery in March of 2008 within the meaning of the Three Strikes law and sentenced him to prison.

CONTENTIONS

Mayorquin contends the evidence was insufficient to prove DNA was a criminal street gang whose primary activities included the commission of the offenses enumerated in the statute, or that the instant assault was committed for the benefit of, or in association with a street gang, and with the specific intent to promote the interests of a street gang.

DISCUSSION

1. Legal principles.

To prove an association of individuals constitutes a criminal street gang under section 186.22, the People must prove "the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a 'pattern of criminal gang activity' by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 'predicate offenses') during the statutorily defined period. [Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 617.)

Expert testimony is admissible to prove the elements of a criminal street gang enhancement. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; People v. Gardeley, supra, 14 Cal.4th at pp. 617-620.) An expert may testify about the size, composition, or existence of a gang, an individual's membership in a gang, the primary activities of a specific gang, the motivation for a particular crime, whether and how a crime was committed to benefit or promote a gang, and gang rivalries, tattoos, colors or attire. (People v. Killebrew (2002) 103 Cal.App.4th 644, 654-657 (reviewing collected cases).) To establish the nature of a gang's primary activities, the trier of fact may look to both past and present criminal activities of the gang, as well as the circumstances of the charged offense. (People v. Sengpadychith, supra, 26 Cal.4th at pp. 320, 323.) "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley, supra, 14 Cal.4th 605." (Id. at p. 324.)

When considering an attack on the sufficiency of evidence to support a criminal street gang enhancement, we view the record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the enhancement true beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)

2. The evidence supports the finding DNA constituted a criminal street gang whose primary activities included commission of the offenses enumerated in the statute.

Mayorquin argues the evidence showed DNA was a "fledgling" tagging crew with a one block territory whose primary activity was writing graffiti. Mayorquin notes Carrillo admitted his opinion that DNA was engaged in violent crime to earn the support of the Mexican Mafia was based on conversations with only two DNA members. Further, Officer Romo, who had personal knowledge of DNA and had seen their graffiti in and around Fremont High School, testified DNA was a tagging crew, not a street gang. Although Carrillo testified the primary activities of DNA included assault with a deadly weapon, robbery and narcotics and weapons violations, the only admissible evidence of DNA's primary activities during a six-year period was the conviction of one DNA member for attempted robbery. Mayorquin asserts this evidence failed to establish the consistent and repeated conduct required to prove robbery was one of DNA's primary activities. (People v. Sengpadychith, supra, 26 Cal.4th at pp. 323-324.) Although other evidence showed four DNA members had been arrested on various charges, evidence of an arrest, without more, is insufficient to prove commission of an enumerated offense for purposes of section 186.22. (In re Leland D. (1990) 223 Cal.App.3d 251, 259-260.)

Mayorquin concludes Carrillo's opinion that DNA was a gang and its primary activities included the commission of offenses enumerated in the statute, standing alone, was insufficient to support the criminal street gang enhancement. (See In re Alexander L. (2007) 149 Cal.App.4th 605,612-614.)

We do not find this argument persuasive.

Gang expert Carrillo testified he was assigned to the gang unit, DNA is one of the gangs he studies and he had served approximately 30 search warrants at the homes of gang members. Carrillo testified about DNA's territory, its rivalry with Florencia 13, DNA graffiti posted in the neighborhood, and a DNA website which contained derogatory statements about Florencia 13, some attributed to "Lil One," Mayorquin's admitted moniker. Carrillo had spoken with approximately 10 of the 15 or 20 members of DNA. Two of these individuals told him DNA wanted to get its 13 from the Mexican Mafia and, as a result, DNA members were "putting in the work" by committing violent crimes. The statements of these two DNA members were corroborated by Carrillo's testimony regarding DNA's primary activities, which included DNA member Barrera's conviction of attempted robbery in 2008.

Carrillo also testified he was present during a search of the home of DNA member Cejas and was present at the time of Cejas's arrest for possession of ammunition and possession of marijuana for sale. Also, Carrillo personally arrested Cejas for carrying a dirk or dagger. Based on arrest reports and conversations with arresting officers, Carrillo learned Cejas also had been arrested for criminal threat, battery on a peace officer and grand theft auto.

Carrillo testified Ever Marroquin, a DNA associate and the owner of the van involved in the attack on Ramirez, was arrested in Carrillo's presence for weapons violations and for discharging a firearm in public. Additionally, Marroquin was arrested in 2005 and 2008 for assault with a deadly weapon. Carrillo also testified DNA member Aguirre was arrested for attempted burglary and possession of a controlled substance in 2009, and for discharging a firearm in public in January 2010.

The trial court properly considered all of this testimony in determining whether the criminal street gang enhancement applied in this case. (People v. Sengpadychith, supra, 26 Cal.4th at p. 324; People v. Gardeley, supra, 14 Cal.4th at p. 620; People v. Duran (2002) 97 Cal.App.4th 1448, 1465 ["The testimony of a gang expert, founded on his or her conversations with gang members, personal investigation of crimes committed by gang members, and information obtained from colleagues in his or her own and other law enforcement agencies, may be sufficient to prove a gang's primary activities. [Citations.]"].)

In re Alexander L., supra, 149 Cal.App.4th 605, cited by Mayorquin, is readily distinguishable from this case. In Alexander L., the gang expert testified with respect to the "primary activities" element, as follows: " 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.' " (Id. at p. 611.) Alexander L. found the expert's testimony insufficient to sustain the gang enhancement because information establishing its reliability was never elicited from the expert at trial. (Id. at p. 612.)

Here, unlike Alexander L., Carrillo based his opinion on reliable information, gathered personally through contact and interaction with members of DNA and law enforcement colleagues, participation in the service of search warrants at the homes of DNA members, and presence at arrests or personally effecting arrests of DNA members. Thus, Carrillo's opinion was reliable.

In addition to Carrillo's testimony regarding the "primary activities" element, the trial court also properly took into account the assault with a deadly weapon on a rival gang member committed by Mayorquin in the current offense. (People v. Sengpadychith, supra, 26 Cal.4th at p. 323; People v. Duran, supra, 97 Cal.App.4th at p. 1465 ["Past offenses, as well as the circumstances of the charged crime, have some tendency in reason to prove the group's primary activities, and thus both may be considered by the jury on the issue of the group's primary activities."].)

We conclude Carrillo's testimony, combined with the evidence related to the instant offense which showed Mayorquin committed a gang-motivated attack, permitted the trial court to conclude DNA was a criminal street gang and that its primary activities included commission of the offenses enumerated in the statute.

We note, in passing, that Mayorquin's was sentenced under the Three Strikes law based on a conviction of robbery in 2008. Although proof of this prior conviction was not adduced during the People's case in chief, it lends further support to the trial court's finding.
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Finally, Carrillo's reliance on the testimony of School Police Officer Romo's to argue DNA was not a gang is misplaced. Romo was not called as an expert witness and his knowledge of DNA was limited to crimes committed by DNA at and around Fremont High School.

In sum, substantial evidence showed DNA was a criminal street gang whose "primary activities" included the commission of one or more of the offenses enumerated in section 186.22.

3. The evidence supports the trial court's finding Mayorquin committed the instant offense for the benefit of his gang.

Mayorquin contends that, even assuming DNA was a criminal street gang, the People proved failed to prove he assaulted Ramirez for the benefit of, or in association with the gang, or that the crime was committed with the specific intent to promote the criminal interests of the gang. He claims the argument erupted spontaneously in a case of "pedestrian road rage" after Ramirez confronted two strangers who merely were following him. Thus, according to Mayorquin, the evidence indicated the crime was committed for personal reasons.

Mayorquin further claims there was no evidence as to the identity of Mayorquin's companion. Therefore, the trial court could not conclude Mayorquin committed the assault in association with a fellow gang member. Mayorquin concludes the only evidence the charged offense was committed with the specific intent to promote, further, or assist the gang was Carrillo's expert opinion. However, Carrillo "did nothing more than inform the jury how [Carrillo] believed the case should be decided" and his testimony on this point should have been excluded. (People v. Killebrew, supra, 103 Cal.App.4th at p. 658; People v. Ramon (2009) 175 Cal.App.4th 843, 851.)

Mayorquin's argument flies in the face of the trial court's factual ruling on the issue. In rendering its verdict, the trial court advised the parties it had no trouble concluding the assault had been committed "on behalf of the gang. You can't have much more than someone shouting out the name of their gang and stabbing somebody."

The evidence abundantly supports the trial court's finding. The attackers jumped from a van one block outside DNA's territory and began to follow Ramirez, a member of a rival gang, Florencia 13. Before stabbing Ramirez, Mayorquin and his companion announced they were from DNA and Mayorquin said he was going to "get [Ramirez] good."

Also, the gang expert testified the crime sent a message to Florencia 13 and members of the community that DNA was committing violent crimes against larger gangs. The assault also tended to create an atmosphere of fear and intimidation in the community, thereby making citizens less likely to report crimes committed by DNA members. The assault also increased DNA's status with the Mexican Mafia because it showed DNA was willing to commit violent acts against a large, well established gang like Florencia 13. "Expert opinion that particular criminal conduct benefited a gang by enhancing its reputation for viciousness can be sufficient to raise the inference that the conduct was 'committed for the benefit of . . . a[] criminal street gang' within the meaning section 186.22(b)(1)." (People v. Albillar, supra, 51 Cal.4th at p. 63.)

Mayorquin's reliance on People v. Killebrew, supra, 103 Cal.App.4th at p. 658, and People v. Ramon, supra, 175 Cal.App.4th at p. 851, is misplaced. Killebrew held it improper to permit an expert to opine that when one gang member possesses a gun, other gang members in the car know of the gun and, therefore, constructively possess it. (People v. Killebrew, supra, at p. 658.) Because Carrillo did not express an opinion as to Mayorquin's knowledge or intent, Killebrew does not assist his argument.

In Ramon, police officers stopped the defendant, a known gang member, driving a stolen vehicle in his gang's territory with a fellow gang member in the passenger seat and a loaded, unregistered firearm under the driver's seat. The defendant was convicted of, among other things, receiving a stolen vehicle and possession of a firearm by a felon with gang enhancements as to both counts. (People v. Ramon, supra, 175 Cal.App.4th at pp. 847-848.) Ramon held: "There were no facts from which the expert could discern whether [the defendant and his companion] were acting on their own behalf the night they were arrested or were acting on behalf of [their gang]." (People v. Ramon, supra, 175 Cal.App.4th at p. 851.)

This case presents a much stronger showing of gang motivation than was demonstrated in Ramon. Mayorquin, an admitted gang member, called out the name of his gang and then stabbed a rival gang member. This evidence of gang incentive, which was entirely absent in Ramon, precludes any meaningful reliance on Ramon by Mayorquin.

Furthermore, contrary to Mayorquin's assertion, the evidence supported an inference Mayorquin committed the charged offense in association with a fellow DNA gang member. Mayorquin's companion exited the van with Mayorquin. The van belonged to Marroquin, an associate of DNA who lived in DNA territory. Inside the van Officer Medina found a wallet covered in DNA graffiti, including four gang monikers, and Ramirez told Medina he was attacked by two DNA members. Also, in the defense portion of the case, Mayorquin testified Cejas, Marroquin and Rincon left Rincon's house before Mayorquin awoke, implying that Cejas, Marroquin and Rincon might have assaulted Ramirez without Mayorquin. Thus, Mayorquin's defense was that other DNA members attacked Ramirez but he did not.

Based on this evidence, the trial court reasonably could infer Mayorquin's companion was a member or an associate of DNA. "[I]f substantial evidence establishes that the defendant intended to and did commit the charged offense with known members of a gang, the jury may reasonably infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members." (People v. Albillar, supra, 51 Cal.4th at p. 68; People v. Villalobos (2006) 145 Cal.App.4th 310, 322; People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)

In sum, the evidence supports the trial court's finding Mayorquin assaulted Ramirez to benefit the gang and with the specific intent to promote or further its interests.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P.J. We concur:

CROSKEY, J.

KITCHING, J.