Filed 4/7/14 In re K.D. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re K.D., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff and Respondent, A138531
v.
(Alameda County
K.D., Super. Ct. No. OJ1201935)
Defendant and Appellant.
Defendant K.D., a minor, appeals the juvenile court’s dispositional order
terminating her dependency status, declaring her a ward of the court, and placing her in
an out-of-state facility pursuant to Welfare and Institutions Code section 241.1.1
Defendant contends the trial court abused its discretion in several respects and that her
constitutional and statutory rights were violated because a jurisdictional hearing on the
section 602 wardship petition was held before a section 241.1 assessment was completed.
We affirm.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.
1
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was arrested and taken to juvenile hall on July 27, 2012, after running
away from her foster placement and stealing the foster parent’s phone and another child’s
belongings. She was taken into protective custody after she was released from juvenile
hall without a home to go to. Defendant’s paternal grandmother, who had been her care
provider for 12 years, refused to take her back due to various behaviors including theft,
running away, drug use and prostitution. On that same day, Alameda County Social
Services filed a dependency petition pursuant to section 300 alleging defendant’s parents
were unable to protect or provide for her support. Defendant was then 16 years old. Her
father was incarcerated and mother’s whereabouts were unknown.
According to the jurisdiction/disposition report filed August 10, 2012, paternal
grandmother reported defendant “had been doing well” until recently. However, at the
beginning of the year, defendant ran away twice, for a week on each occasion. The
second time, she “came back intoxicated with methamphetamines and ‘babbling.’ ”
Grandmother enrolled defendant in the Thunder Road substance treatment program in
March 2012, but she went AWOL from the program in May. Defendant acknowledged
to the social worker she had been sexually exploited for a two-week period ending on
July 24, 2012, when “her pimp left her in Stockton.” Defendant asserted prostitution
“was only a temporary means to make money while she was AWOL.” She also
acknowledged she smoked marijuana every day and had used methamphetamines.
On August 13, 2012, the juvenile court found the dependency petition allegations
true and declared defendant a dependent. The court ordered a planned permanent living
arrangement with a foster parent, suitable group home, or residential facility.
On August 21, the juvenile court granted the social worker’s application for a
protective custody warrant after the foster parent reported defendant had absconded from
her placement. The social worker filed another application for a protective custody
warrant on September 25 after receiving a call from the caregiver that defendant did not
return from a sleepover at a friend’s house.
2
In a status review report filed on January 22, 2013, the social worker reported
defendant had been held at Juvenile Hall in San Joaquin County since January 10, facing
charges on loitering with intent to commit prostitution. The social worker noted
defendant “has not been compliant with her case plan, in that she was AWOL and not
attending school.” Also, the social worker reported there had been two incidents during
the reporting period where defendant had been contacted by police for prostitution. The
social worker expressed concern for defendant’s welfare “given the choices she has made
regarding leaving placement and not attending school” and further opining “she places
herself in grave danger [by] . . . participating in criminal activity that makes her very
vulnerable to assault or worse.”
On February 13, the San Francisco County District Attorney’s Office filed a
wardship petition pursuant to section 602, subdivision (a), alleging defendant solicited
and agreed to engage in prostitution in violation of Penal Code section 647, subdivision
(b), and resisted a peace officer, in violation of Penal Code section 148, subdivision
(a)(1). The detention report prepared in connection with the wardship petition described
the circumstances of the offense: At approximately 3:45 a.m. on February 13, 2013, a
plain clothes San Francisco police officer assigned to the prostitution detail and operating
an unmarked patrol car observed defendant standing at the intersection of 20th Street and
Capp Street. Defendant waved at the officer as he approached. The officer pulled over
and negotiated to have sex with defendant for $60, recording the transaction on a digital
audio device. Defendant reached into the vehicle and attempted to touch the officer in
the groin area. The officer grabbed defendant’s hand and told her she was going to be
arrested. Defendant twisted her arm, broke free of the officer’s grasp and ran off. After
the officer requested assistance, defendant was located west of 20th Street hiding
between two parked cars.
On February 14, defendant admitted as true the allegation of resisting a peace
officer, and the prostitution allegation was dismissed. Thereafter, the San Francisco
Juvenile Court transferred defendant’s section 602 matter to Alameda County for
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disposition. On February 20, the Alameda County Juvenile Court accepted the transfer
and ordered defendant detained at juvenile hall until further order of the court.
On March 8, 2013, the Alameda County Social Services Agency Director and the
Alameda County Chief Probation Officer filed a joint report pursuant to section 241.1 to
assess and recommend whether defendant should be a declared a ward or remain a
dependent of the court.2 The report noted defendant had been a dependent since August
2012, after her grandmother could no longer care for her due to her out-of-control
behavior. It stated: “This behavior included running away, theft, use of drugs, and
prostitution. Since becoming a dependent, she has been chronically absent without
approval for leave (AWOL) from placements. [Defendant] is pregnant and her child is
due in August 2013. [Defendant] admitted to smoking cigarettes and marijuana daily.
She also has used methamphetamines and ecstasy in the past. [¶] Both the undersigned
and the Child Welfare Worker agree that it is in the minor’s best interest to be adjudged a
ward of the Court. . . . [Defendant] could benefit from being placed at a program in a
more remote location that would dissuade her from AWOLing. A Guidance Clinic
evaluation would also be beneficial. . . . [T]he undersigned referred [defendant] to Bay
Area Women Against Rape (BAWAR). Hopefully with their help, [defendant] can get
the help she needs to change her life. It is important that she understands the potential
harm that could come to her child should she continue on this destructive path.”
On March 13, 2013, the juvenile court held a status determination hearing under
section 241.1. The court dismissed defendant’s dependency and adjudged her a ward of
court.
2
Section 241.1 provides in part that “Whenever a minor appears to come within
the description of both Section 300 and Section 601 or 602, the county probation
department and the child welfare services department shall, pursuant to a jointly
developed written protocol described in subdivision (b), initially determine which status
will serve the best interests of the minor and the protection of society. The
recommendations of both departments shall be presented to the juvenile court with the
petition that is filed on behalf of the minor, and the court shall determine which status is
appropriate for the minor.” (§ 241.1, subd. (a).)
4
In a placement review filed on April 5, 2013, the probation officer reported
defendant had terminated her pregnancy. The officer also reported defendant was
interviewed and found appropriate for placement at the Mingus Mountain Academy in
Arizona (Mingus Mountain), which “does well with the girls who are sexually exploited
and who are AWOL risks.” The probation officer added, “The minor has a history from
three different counties for prostitution and had run from numerous foster care
placements. A remote facility would be best for [her].” On April 11, 2013, the juvenile
court ordered defendant placed at the Mingus Mountain. On April 30, 2013, defendant
filed a timely notice of appeal.
DISCUSSION
A. Applicable Legal Standards
The law governing minors with cases in both the dependency system and
delinquency system was summarized in In re Joey G. (2012) 206 Cal.App.4th 343 (Joey
G.): “Under section 300, a child who is neglected or abused falls within the juvenile
court’s protective jurisdiction as a ‘ “dependent child of the court.” ’ [Citation.] As a
dependent, the juvenile court may remove the minor from the home, or place the minor in
alternative care that meets his or her needs for custody, care and guidance. [Citation.]
Alternatively, the juvenile court may take jurisdiction over a minor as a ‘ “ward of the
court” when the child is habitually disobedient or truant’ under section 601 or commits a
crime under section 602. [Citation.] When a minor is adjudged a ward of the court, the
minor is subject to more-restrictive placements because of his or her criminal conduct
and the court may commit the minor to a juvenile home, ranch, camp, forestry camp, or
juvenile hall. [Citation.] The Legislature has declared that a minor cannot
simultaneously be both a dependent and a ward of the juvenile court.” (Id. at p. 347.)
“Section 241.1 sets forth the procedure for handling cases with dual jurisdiction in
which a minor is both a dependent under section 300 and a ward under sections 601 or
602. It requires the probation department and the welfare department to jointly develop a
written protocol to determine which status will best serve the interests of the minor and
the protection of society. Once completed, the report is presented to the juvenile court
5
for a determination of the appropriate status for the minor. [Citation.] The joint
assessment report must contain the joint recommendation of the probation and child
welfare departments and also include (1) a description of the nature of the referral, (2) the
age of the child, (3) the history of any physical, sexual or emotional abuse of the child,
(4) the prior record of the child’s parents for abuse of this or any other child, (5) the prior
record of the child for out-of-control or delinquent behavior, (6) the parents’ cooperation
with the child’s school, (7) the child’s functioning at school, (8) the nature of the child’s
home environment, (9) the history of involvement of any agencies or professionals with
the child and his or her family, (10) any services or community agencies that are
available to assist the child and his or her family, (11) a statement by any counsel
currently representing the child, and (12) a statement by any court-appointed special
advocate (CASA) volunteer currently appointed for the child.” (Joey G., supra,
206 Cal.App.4th at pp. 347–348.)
A trial court’s determination under section 241.1, whether to retain section 300
dependency status or declare section 601 or 602 wardship, is reviewed for abuse of
discretion. (Joey G., supra, 206 Cal.App.4th at p. 346.) “To show abuse of discretion,
the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a miscarriage of justice.” (Ibid.)
Moreover, “ ‘ “[w]e must indulge all reasonable inferences to support the decision of the
juvenile court and will not disturb its findings when there is substantial evidence to
support them.” ’ [Citation.]” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.)
B. Analysis
Judged under the above standards, the juvenile court’s decision to terminate
dependency and declare wardship did not constitute an abuse of discretion. On the
contrary, the court’s decision was amply justified based on defendant’s admitted use of
drugs on a daily basis, her documented involvement in street-corner prostitution, and her
habitual abandonment of court-ordered foster home placements, all of which constituted
both a danger to herself and created a potential public nuisance.
6
Defendant nevertheless asserts the juvenile court’s decision should be reversed
because the section 241.1 report did not meet statutory requirements and did not provide
adequate information for the court to make a well-reasoned decision to treat the minor as
a ward rather than a dependent.
Defendant did not object in the juvenile court that the section 241.1 report was
flawed and could not support an adjudication of wardship. Accordingly, any objection to
the sufficiency of the section 241.1 report has been waived. (See, e.g., In re Crystal J.
(1993) 12 Cal.App.4th 407, 411–412 [failure to object to the adequacy of assessment
mandated by section 366.21 at the 12-month review hearing waived the right to raise the
issue on appeal].) In any case, the section 241.1 report addressed all matters mandated by
the statute, namely, “consideration of the nature of the referral, the age of the minor, the
prior record of the minor’s parents for child abuse, the prior record of the minor for out-
of-control or delinquent behavior, the parents’ cooperation with the minor’s school, the
minor’s functioning at school, the nature of the minor’s home environment, and the
records of other agencies that have been involved with the minor and his or her family.”
(§ 241.1, subd. (b)(2).)
Defendant contends the report failed to mention matters not specifically required
under section 241.1 but listed in California Rules of Court, rule 5.512 (hereafter
rule 5.512). In this regard, defendant asserts the section 241.1 report “completely failed
to mention any services or community agencies that were available to assist [defendant]
and her family.” This assertion is belied by the record. The section 241.1 report states,
“[Defendant] could benefit from being placed at a program in a more remote location that
would dissuade her from AWOLing. A Guidance Clinic evaluation could also be
beneficial. On March 6, 2013, the undersigned referred [defendant] to Bay Area Women
Against Rape.” Also, whereas defendant complains the section 241.1 report did not
include a statement by her dependency counsel, as required under rule 5.512(d)(11), the
court received a separate report from dependency counsel, and at the section 241.1
hearing the court stated it read counsel’s report “very, very carefully . . . a couple times
now.” Thus, any error in failing to include dependency counsel’s statement in the
7
section 241.1 report was harmless because the trial court read counsel’s statement and
considered it. (See In re Celine R. (2003) 31 Cal.4th 45, 60 [holding that harmless error
standard of People v. Watson (1956) 46 Cal.2d 818, 836 applies in dependency matters].)
Furthermore, in addition to the section 241.1 report and dependency counsel’s report, the
juvenile court also reviewed the probation disposition report, the minute orders from
prior hearings and other materials in the record. In sum, the juvenile court had ample
information on which to base its decision to treat defendant as a ward rather than a
dependent.3
Defendant also challenges the juvenile court’s selection of wardship over
dependency on the grounds the same result—ensuring she would participate in treatment
and not go AWOL—could have been accomplished by continuing her as a dependent. In
support of this argument, defendant proffers a list of other secure, restrictive group homes
outside the Bay Area but within California and asserts the trial court could have placed
her at one of those facilities while maintaining her dependency status. In the same vein,
she asserts the Agency “never placed the minor in a therapeutic treatment facility or a
group home in a more remote in-state location.” Even if these assertions are true, they do
not amount to a showing the juvenile court abused its discretion by declaring defendant a
ward. (See Joey G., supra, 206 Cal.App.4th at p. 346 [“To show abuse of discretion, the
appellant must demonstrate the juvenile court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a miscarriage of justice.”].) On the
contrary, the trial court’s wardship determination was supported by substantial
evidence—of defendant’s substance abuse, prostitution and her chronic abandonment of
3
Defendant’s reliance on Joey G., supra, and In re Marcus G. (1999)
73 Cal.App.4th 1008 (Marcus G.), is misplaced. In those cases, unlike this one, reversal
was warranted because the juvenile court was not presented with a joint assessment by
the probation and welfare departments as required by section 241.1. (Marcus G., supra,
73 Cal.App.4th at p. 1014; Joey G., supra, 206 Cal.App.4th at p. 349.)
8
all prior placements. (See In re Robert H., supra, 96 Cal.App.4th at p. 1330 [juvenile
court’s findings will not be disturbed on appeal if supported by substantial evidence].)4
Defendant also seeks reversal on the grounds her constitutional and statutory
rights to due process were violated because the section 602 jurisdictional hearing was
held prior to the section 241.1 assessment. On this point, defendant notes rule 5.512
provides that the “the hearing on the joint assessment report must occur . . . no later than
15 courts days after the order of detention and before the jurisdictional hearing.”
(Rule 5.512(e), italics added.) She asserts this rule was violated because in her case the
section 241.1 assessment was not ordered “until the case was accepted on a transfer-in in
Alameda County on February 20, 2013, six days after the San Francisco Juvenile Court
found section 602 jurisdiction on February 14, 2013.”
Not only did defendant fail to object to the section 602 hearing going forward
before a section 241.1 assessment had been conducted pursuant to rule 5.512, she
affirmatively acquiesced in the section 602 proceeding, admitting to count 2 of the
section 602 petition (misdemeanor resisting arrest) after waiving her constitutional rights
and count 1 of the petition (misdemeanor solicitation to engage in an act of prostitution)
was dismissed. Accordingly, defendant has forfeited the issue on appeal. (See, e.g., In re
Dakota S. (2000) 85 Cal.App.4th 494, 502 [citing cases in which appellate courts have
applied the forfeiture doctrine “in dependency proceedings in a wide variety of contexts,
including cases involving failures to obtain various reports required by statute”].)
Even if the issue was not forfeited, the failure to comply with rule 5.512 is not of
constitutional magnitude. “A procedural due process claim . . . requires a deprivation of
4
We summarily reject defendant’s “public policy” argument that she should have
remained a dependent because she was a “commercially sexually exploited minor.” This
wide-ranging argument, drawing upon the Child Abuse and Neglect Reporting Act (Pen.
Code, § 11164 et seq.), the 2000 federal Trafficking Victims Protection Act, and Welfare
and Institutions Code section 18259 (providing that the County of Alameda, “contingent
upon local funding, may establish a pilot project . . . to address the needs and effective
treatment of commercially sexually exploited minors”) was not presented below. Nor
does it change the fact the juvenile court’s determination of wardship under section 241.1
was supported by substantial record evidence.
9
a constitutionally protected interest and a denial of adequate procedural protections.
[Citations.] Although what procedural process is due in a given circumstance may vary,
it ‘always requires a relatively level playing field, the “constitutional floor” of a “fair trial
in a fair tribunal,” in other words, a fair hearing before a neutral or unbiased decision-
maker. [Citations.]’ [Citations.]” (Shaw v. County of Santa Cruz (2008)
170 Cal.App.4th 229, 265–266.) Here, although the time of the hearing may not have
comported with the guidelines set forth in rule 5.512, the court did conduct a
section 241.1 assessment hearing, and carefully considered both the evidence submitted
and the argument of counsel before reaching the ultimate determination of whether to
terminate appellant’s status as a dependent. Moreover, on this record, there is no basis to
conclude the juvenile court would have continued defendant as a dependent, rather than
declaring her a ward, had the section 24.1 assessment hearing had been held prior to the
section 602 jurisdictional hearing. The court would have received and based its decision
on the same information, including defendant’s history of going AWOL from
placements, engaging in prostitution while AWOL, daily drug use, as well as the
underlying the section 602 petition involving solicitation of prostitution and resisting an
officer. Thus, whether viewed as an error of state law or a due process violation,
defendant cannot show prejudice from any error in the timing of the section 241.1
assessment hearing under either state or federal standards for harmless error. (See People
v. Watson, supra, 46 Cal.2d at p. 837 [question is whether it is “reasonably probable that
a result more favorable to [defendant] would have been reached in the absence of the
error”]; Chapman v. California (1967) 386 U.S. 18, 24 [“before a federal constitutional
error can be held harmless, the court must be able to declare a belief that it was harmless
beyond a reasonable doubt”].)
Defendant also contends the disposition was erroneous because there was no “case
plan” as required in section 706.6. Again, there was no objection to the lack of a case
plan, nor was there any request for a continuance of the dispositional hearing for receipt
of a case plan. Accordingly, any claim of error on that ground was forfeited. (See, e.g.,
People v. Scott (1994) 9 Cal.4th 331, 352–356; In re Christopher S. (1992)
10
10 Cal.App.4th 1337, 1344 [procedural matters waived on appeal if not raised in trial
court].) Even if it was not, there was no prejudice, as the information required in a case
plan under section 706.6 was included in the section 241.1 report and the probation
department’s investigation of other possible placements. Thus, the omission of a case
plan was clearly harmless as it is not reasonably probable the court would have made a
different finding had there been a formal case plan. (See People v. Watson, supra,
46 Cal.2d at p. 836.)
Lastly, defendant contends the juvenile court erred by ordering an out-of-state
placement, asserting there was insufficient evidence to support the court’s findings that
out-of-state placement was in the minor’s best interest and no equivalent in-state facility
was available. Pursuant to section 727.1, subdivision (b), before ordering an out-of-state
placement the court must determine that in-state facilities or programs are “unavailable or
inadequate to meet the needs of the minor.” We review a commitment decision “for
abuse of discretion, indulging all reasonable inferences to support the juvenile court’s
decision.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)
In this case, after declaring wardship on March 13, 2013, the court held placement
review hearings on March 28, April 11 and April 25, 2013, before finalizing its decision
to place defendant at the Mingus Mountain Academy. Prior to placement, the court also
referred her to the Guidance Clinic and received a report prepared by Leslie Marks, a
Behavioral Health Care Clinician. Marks noted defendant was referred to the Guidance
Clinic for a “psycho-diagnostic evaluation” covering a range of issues, such as whether
defendant “has a substance-related disorder,” whether “family or peer dynamics
contribute or cause her delinquent behavior,” and “[i]dentification of what type of setting
would be most beneficial for [defendant].” (Italics added.) On the latter point, Marks
concluded “the best setting for [defendant] is placement in a residential treatment
program. [Defendant] has been continuously running away, placing herself in dangerous
situations, and risks further being victimized and sexually exploited by others.
[Defendant] poses a high flight risk. [Defendant] would benefit from a setting that has a
therapeutic environment with sufficient safety and security so her underlying mental
11
health problems are addressed. The residential setting needs to provide an opportunity
for her to therapeutically work on issues of trauma, sexual exploitation, drug abuse, poor
impulse control and her underlying feelings of loss and abandonment.”
Moreover, the probation officer, in her placement review report filed on April 5,
2013, opined Mingus Mountain would be the best program for defendant because it “does
well with the girls who are sexually exploited and who are AWOL risks. The minor has a
history from three different counties for prostitution and had run from numerous foster
care placements. A remote facility would be best for [defendant].” The court found this
a well-founded assessment, observing at the placement hearing on April 11, 2013, “So
the fact that she is a flight risk is what’s playing into this decision in terms of what is the
appropriate placement for her. And at this time what’s being looked at is Clarinda
Academy as well as Mingus Mountain. So Thunder Road is not going to be an option at
this point.”
On April 12, 2013, the juvenile court signed an ex parte order approving
defendant’s placement at the Mingus Mountain Academy which contained the following
findings: “Mingus Mountain Academy is licensed by the state of Arizona and certified
by the California Department of Social Services for the placement of minors. [Citation.]
[¶] In-State facilities or programs have been determined to be unavailable or inadequate
to meet the needs of the minor. [Citation.] [¶] Equivalent facilities for the minor are not
available in California and institutional care in Arizona is in the best interest of the minor
and will not produce undue hardship. . . . [¶] The [Multidisciplinary Team (MDT)]
assessed the matter and approves the out-of-home placement and plan of the minor with
Mingus Mountain Academy, Arizona. [Citation.]”5
In sum, the evidence showed defendant required a controlled and remote
environment that would allow her to engage fully in the therapeutic programs necessary
5
Defendant’s request for judicial notice, filed on December 3, 2013, of the Foster
Care Rates Group Home Facility of November 15, 2013, promulgated by the State of
California, Department of Social Services, Children and Family Services Division is
denied. We reject the suggestion the court abused its discretion because it did not assess
every level 14 group home on the list before selecting out-of-state placement.
12
to address her underlying mental health and drug abuse problems; that Mingus Mountain
met those requirements; and that placement at Mingus Mountain would deter defendant
from relapsing into the drug use and prostitution that resulted when she absconded from
in-state placements, such as the Thunder Road drug treatment program. There was ample
basis for concluding out-of-state placement was in the minor’s best interest.
Similarly, the record solidly supports the court’s determination there was no
equivalent facility for appellant within the state. In this regard, the probation department
explored placement at Grace Homes in Visalia and a placement in San Diego for
pregnant women. However, after defendant terminated her pregnancy, probation
determined that a remote placement would be more appropriate. In addition, the record
shows that from July 26, 2012, to December 11, 2012, defendant was assigned to four
different out-of-home placements and went AWOL from each of those placements.
Moreover, defendant’s preferred placement at Thunder Road was unsuitable because she
went AWOL from that facility on each of her three prior placements there. Further,
contrary to defendant’s assertion, the juvenile court did not err by failing to require the
probation department to report more thoroughly on in-state programs it had considered
and rejected, and to explain why the programs were rejected. Indeed, section 727.1,
governing of out-of-state placements, contains no such requirement, and the juvenile
court made all findings required under section 727.1. (See In re Oscar A. (2013)
217 Cal.App.4th 750, 757 (Oscar A.) [stating that juvenile court “need not determine all
in-state facilities are unavailable [and] . . . mere existence of other facilities in California
does not mean the court abused its discretion by ordering out-of-state placement”].)
In sum, in light of defendant’s history, the need to separate her from negative
influences, and the lack of available and adequate in-state facilities, the juvenile court
acted well within its discretion in ordering defendant placed in an out-of-state facility.
(See Oscar A., supra, 217 Cal.App.4th at p. 758 [concluding that “[g]iven [the minor’s]
behavioral issues, substance abuse, and multiple AWOL’s, an out-of-state facility would
best serve his interests and the purpose of the juvenile court law to enable him to become
a law-abiding and productive member of society”].)
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DISPOSITION
The juvenile court’s dispositional order declaring appellant a ward, dismissing her
dependency and ordering out-of-state placement is affirmed.
_________________________
Banke, J.
We concur:
_________________________
Dondero, Acting P. J.
_________________________
Becton, J.
Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
14