People v. Martinez CA6

Filed 4/21/14 P. v. Martinez CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039273
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1085573)

v.

JOE PAUL MARTINEZ,

Defendant and Appellant.

INTRODUCTION
Defendant Joe Paul Martinez pleaded guilty to assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)1; count 1), attempted premeditated murder of an officer
(§§ 664, subd. (f), 187; count 2), possession for sale of methamphetamine (Health & Saf.
Code, § 11378; count 3), and possession of a firearm by a felon (former § 12021,
subd. (a)(1); count 4). As to count 1, defendant admitted the allegation that he personally
inflicted great bodily injury (§ 12022.7, subd. (a)), and as to count 2, he admitted the
allegation that he personally discharged a firearm (§ 12022.53, subd. (c)). Defendant
also admitted the allegation that he had been convicted of two prior strikes (§§ 667,
subds. (b)-(i) & 1170.12), as well as a prior serious felony (§ 667, subd. (a)). Defendant
was sentenced to 95 years in prison.

1
All further statutory references are to the Penal Code unless otherwise specified.
 On appeal, defendant challenges various fines and fees that the trial court imposed
during sentencing. He claims that the court failed to properly consider his ability to pay a
$10,000 restitution fine (§ 1202.4, subd. (b)), a $150 drug program fee (Health & Saf.
Code, § 11372.7) and penalty assessments, and a $129.75 booking fee (Gov. Code,
§§ 29550, subd. (a), 29550.1), and that there was no substantial evidence of his ability to
pay these fines and fees. He also contends the court miscalculated the penalty
assessments on the drug program fee and the laboratory fee (Health & Saf. Code,
§ 11372.7). For reasons that we will explain, we will modify the judgment with respect
to the penalty assessments and affirm the judgment as modified.
BACKGROUND
A. Facts Underlying the Charged Offenses2
1. Count 1
On July 13, 2010, defendant went to his father’s house and approached his father.
Defendant had a “crazy stare” and did not say anything. His father asked defendant what
his problem was. Defendant responded that his father was his problem, and he started
punching and kicking his father. Defendant then stabbed his father six times.
2. Counts 2-4
On October 21, 2010, police officers found defendant sleeping in a parked car.
The officers parked their patrol vehicles so as to surround defendant’s car. The officers
ordered defendant to put his hands up and surrender. Defendant refused to raise both
hands, and he attempted to drive away. One of the officers, Officer Macias, approached
defendant’s car from the passenger side. Defendant turned his head, saw Officer Macias,
and fired a gun at the officer. A piece of glass flew towards Officer Macias and impaled
his left cheek. The other officers then opened fire at defendant. Defendant was shot

2
The facts are taken from the transcripts of the preliminary examinations and the
probation report.

2
multiple times. The officers later recovered a handgun in defendant’s vehicle and
methamphetamine on defendant’s person.
B. Charges and Pleas
The District Attorney filed an amended consolidated information charging
defendant with assault with a deadly weapon (§ 245, subd. (a)(1); count 1), attempted
premeditated murder of an officer (§§ 664, subd. (f), 187; count 2), possession for sale of
methamphetamine (Health & Saf. Code, § 11378; count 3), and possession of a firearm
by a felon (former § 12021, subd. (a)(1); count 4). The information further alleged that
as to count 1, defendant inflicted great bodily injury (§ 12022.7, subd. (a)) and that as to
count 2, defendant personally discharged a firearm (§ 12022.53, subd. (c)). Additionally,
the information alleged that defendant had been convicted of two felony offenses that
qualified as strikes (§§ 667, subds. (b)-(i), 1170.12) as well as a prior serious felony
allegation (§ 667, subd. (a)).
Defendant pled guilty to all charges and admitted the great bodily injury
(§ 12022.7, subd. (a)) and firearm (§ 12022.53, subd. (c)) allegations. He also admitted
the strike allegations (§§ 667, subds. (b)-(i), 1170.12) and the prior serious felony
allegation (§ 667, subd. (a)).
C. Probation Report
The probation report was prepared on November 30, 2012. Defendant was
37 years old at the time. Defendant discussed his health history with the probation
officer. Defendant suffered from and took medication for asthma, high blood pressure,
and high cholesterol. He also suffered health problems after being shot during the
commission of the underlying offense. Defendant was blind in his left eye, had a bone
replacement in his left hand, lost the pinky finger on his right hand, and had nerve
damage on his right wrist. He took medication for his nerve damage. Defendant told the
probation officer that he had three bullets still lodged in his body. Defendant denied
having any mental health conditions.

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 The probation report noted that defendant had been convicted of two felonies and
four misdemeanors in the past. Defendant committed his felony offenses 14 years prior
to the present offense, and he served 11 years 4 months in prison for those convictions.
The report mentioned that defendant had a “very limited work history, and has spent most
of his adult life incarcerated.”
The probation report also included defendant’s social data. Defendant had last
been employed by Daylight Foods, working as a driver from 2007 to 2009 for $15 per
hour. He had obtained his GED in 2006 in New Folsom Prison. He also completed a
“Brakes & Alignment” program in 1993.
The probation officer’s recommendations included imposition of several fines and
fees. The recommendations included: (1) “A Restitution Fine of $10,000.00 be imposed
under the formula permitted by . . . [s]ection 1202.4[, subdivision] (b)(2) and
[defendant’s] ability to pay,” (2) a “$129.75 Criminal Justice Administration fee to the
City of San Jose be imposed pursuant to Government Code [sections] 29550, 29550.1
and 29550.2,” (3) a “$50.00 Criminal Laboratory Analysis Fee, plus penalty
assessment[s], be imposed pursuant to [s]ection 11372.5 of the Health and Safety Code,”
and (4) a “$150.00 Drug Program Fee, plus penalty assessment[s], be imposed pursuant
to [s]ection 11372.7 of the Health and Safety Code.”
D. Sentencing
On January 25, 2013, the trial court held a sentencing hearing. The court denied
defendant’s motion to dismiss the strike allegation (see People v. Superior Court
(Romero) (1996) 13 Cal.4th 497) and it sentenced defendant to prison for a term of
95 years. The court also ordered defendant to pay various fines and fees.
The trial court ordered defendant to pay a restitution fine of $10,000 “under the
formula permitted by . . . [s]ection 1202.4[, subdivision (b)(2)] as well as [defendant’s]
ability to pay.” The trial court also imposed but suspended an additional $10,000 fine
(§ 1202.45). Defense counsel commented that defendant was indigent and, “He would

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have no ability to pay.” The trial court replied, “I understand what you’re saying[.] I am
looking at work history and also the fact once at state prison he will be able to work
there. So I am making a finding based on that.”
The trial court ordered defendant to pay a court security fee (§ 1465.8) of $160
and a criminal conviction assessment (Gov. Code, § 70373) of $120. Additionally, the
court imposed a $129.75 criminal justice administration fee (Gov. Code, §§ 29550,
subd. (a), 29550.1, 29550.2), finding that defendant “has the ability to pay” that fee. The
court imposed a $50 criminal laboratory analysis fee (Health & Saf. Code § 11372.5)
“plus penalty assessment[s]” of $150. The court also imposed a $150 drug program fee
(Health & Saf. Code § 11372.7) “plus penalty assessment[s]” of $450. As to the drug
program fee, the court commented, “Again, I find he has the ability to make that
payment.”
Lastly, the court noted, “In view of all that has transpired even though your
attorney’s fees are worth thousands and thousands of dollars I am not going to assess
attorney’s fees at this time.”
At the conclusion of the sentencing hearing, defense counsel stated, “We are
objecting to the imposition of any fines and fees because [defendant] is indigent. He also
states and I believe to be true base[d] on the medical records in discovery provided in this
case that he would be unable to work in prison. He would not be able to gain any wages
or get a job because of the disabilities that he has.” The trial court responded that it
would “leave [its] order as set.”
DISCUSSION
A. Restitution Fine
Defendant contends that the trial court erred by imposing a $10,000 restitution fine
(§ 1202.4, subd. (b)). Defendant acknowledges that the court found that he had the
ability to pay the restitution fine, but he claims that the court failed to consider certain

5
factors: his physical condition and his limited work history. Moreover, he contends there
was no substantial evidence supporting an ability to pay finding.
1. Legal Background
The version of section 1202.4, subdivision (b) applicable at the time of
defendant’s offenses provided that “[i]n every case where a person is convicted of a
crime, the court shall impose a separate and additional restitution fine, unless it finds
compelling and extraordinary reasons for not doing so, and states those reasons on the
record.” (Former § 1202.4, subd. (b) amended by Stats. 2009, ch. 454, § 1, p. 2483,
repealed by Stats. 2011, ch. 358, § 1, p. 3759.)
Former section 1202.4, subdivision (b)(1) provided that the “restitution fine shall
be set at the discretion of the court and commensurate with the seriousness of the offense,
but shall not be less than two hundred dollars ($200), and not more than ten thousand
dollars ($10,000), if the person is convicted of a felony, and shall not be less than one
hundred dollars ($100), and not more than one thousand dollars ($1,000), if the person is
convicted of a misdemeanor.” Former section 1202.4, subdivision (b)(2) provided that in
“setting a felony restitution fine, the court may determine the amount of the fine as the
product of two hundred dollars ($200) multiplied by the number of years of
imprisonment the defendant is ordered to serve, multiplied by the number of felony
counts of which the defendant is convicted.” Former section 1202.4, subdivision (c)
provided in pertinent part that a “defendant’s inability to pay shall not be considered a
compelling and extraordinary reason not to impose a restitution fine. Inability to pay
may be considered only in increasing the amount of the restitution fine in excess of the
two hundred-dollar ($200) or one hundred-dollar ($100) minimum.”
Former section 1202.4, subdivision (d) provided that in “setting the amount of the
fine pursuant to subdivision (b) in excess of the two hundred-dollar ($200) or one
hundred-dollar ($100) minimum, the court shall consider any relevant factors including,
but not limited to, the defendant’s inability to pay, the seriousness and gravity of the

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offense and the circumstances of its commission, any economic gain derived by the
defendant as a result of the crime, the extent to which any other person suffered any
losses as a result of the crime, and the number of victims involved in the crime. Those
losses may include pecuniary losses to the victim or his or her dependents as well as
intangible losses, such as psychological harm caused by the crime. Consideration of a
defendant’s inability to pay may include his or her future earning capacity. A defendant
shall bear the burden of demonstrating his or her inability to pay. Express findings by
the court as to the factors bearing on the amount of the fine shall not be required. A
separate hearing for the fine shall not be required.” (Italics added.)
2. Analysis
Contrary to defendant’s assertion, the trial court considered his medical condition
and his work history when it set the restitution fine at $10,000. After defense counsel
argued that defendant was indigent and had no ability to pay, the court found that based
on his “work history and also the fact once at state prison he will be able to work there,”
defendant had the ability to pay. Indeed, state prison inmates who perform assigned work
are compensated for it. (See § 2700.) The court was thus entitled to consider future
prison wages as a basis for imposing the restitution fine. (See People v. Frye (1994) 21
Cal.App.4th 1483, 1486-1487 (Frye).)
Furthermore, although defendant argued that he would be unable to work in prison
due to his disabilities, the trial court took into consideration defendant’s medical
condition, which was detailed in the probation report. The court was also able to observe
his physical condition at the sentencing hearing before imposing the restitution fine. (See
People v. Staley (1992) 10 Cal.App.4th 782, 786 (Staley).) Thus, the court was in the
best position to evaluate defendant’s physical condition in relation to his ability to work
and earn prison wages. (Ibid.) Moreover, we note that state prisons consider a prisoner’s
disabilities in evaluating his or her ability to work. (See Cal. Code Regs. tit. 15, §§ 3040,
3043.5, subds. (d) & (e).) State prisons must also accommodate a disabled inmate in

7
compliance with the American With Disabilities Act (ADA). (Armstrong v. Wilson
(9th Cir. 1997) 124 F.3d 1019, 1025; Cal. Code Regs. tit. 15, § 3085.) Therefore, the
court was entitled to consider defendant’s future prison wages in spite of his medical
condition.
Additionally, the trial court was apprised, through the probation report, of
defendant’s social, work, and criminal history prior to setting the restitution fine. The
court was able to consider factors such as defendant’s previous employment as a driver,
his completion of a “Brakes and Alignment” training program and the attainment of his
GED. Absent evidence to the contrary, this court presumes that the trial court followed
the law and performed its duty (see Evid. Code, § 664) to consider the appropriate factors
in determining defendant’s ability to pay.
In sum, the record shows that the trial court considered the appropriate factors in
determining defendant’s ability to pay the restitution fine. Furthermore, based on the
same factors discussed above, substantial evidence supports the court’s ability to pay
finding.
B. Drug Program Fee
Next, defendant contends that the trial court erred by imposing a $150 drug
program fee (Health & Saf. Code § 11372.7) and penalty assessments. Although
defendant acknowledges that the court found defendant had the ability to pay the drug
program fee, he again argues that the court did not consider his medical condition and his
limited work history. Defendant argues that there was no substantial evidence supporting
an ability to pay finding.
1. Legal Background
Health and Safety Code section 11372.7 provides: “(a) Except as otherwise
provided in subdivision (b) or (e), each person who is convicted of a violation of this
chapter shall pay a drug program fee in an amount not to exceed one hundred fifty dollars
($150) for each separate offense. The court shall increase the total fine, if necessary, to

8
include this increment, which shall be in addition to any other penalty prescribed by law.
[¶] (b) The court shall determine whether or not the person who is convicted of a
violation of this chapter has the ability to pay a drug program fee. If the court determines
that the person has the ability to pay, the court may set the amount to be paid and order
the person to pay that sum to the county in a manner that the court believes is reasonable
and compatible with the person’s financial ability. In its determination of whether a
person has the ability to pay, the court shall take into account the amount of any fine
imposed upon that person and any amount that person has been ordered to pay in
restitution. If the court determines that the person does not have the ability to pay a drug
program fee, the person shall not be required to pay a drug program fee.”
The drug program fee is thus mandatory, provided the trial court determines the
defendant has the ability to pay the fee. (Health & Saf. Code, § 11372.7, subd. (b).) In
determining a defendant’s ability to pay, the court is permitted to consider various
criteria, including a defendant’s future discernible financial position. (Frye, supra,
21 Cal.App.4th at pp. 1486-1487.)
2. Analysis
Defendant compares this case to People v. Corrales (2013) 213 Cal.App.4th 696
where the appellate court reversed a drug program fee and penalties because there was no
substantial evidence of the defendant’s ability to pay. (Id. at p. 702.) In that case, the
probation report contained “no evidence of defendant’s assets” and indicated that the
defendant was an “unemployed ex-convict.” (Ibid.) The appellate court reversed the
drug program fee and penalties, and on remand, it ordered the trial court to determine if
the defendant had the ability to pay the fee in light of his total financial obligations.
(Ibid.)
In contrast, here, the trial court made an express finding that defendant had an
ability to pay the drug program fee and penalty assessments based on his work history
and his ability to earn wages once in prison. The record shows that the court was aware

9
of and considered various factors, including defendant’s medical, social, and criminal
history, before imposing the drug program fee and the penalty assessments. Furthermore,
the trial court’s decision to not impose attorney’s fees demonstrated that it had considered
defendant’s ability to pay in light of defendant’s total financial obligation. Thus, the
record shows that the court properly considered relevant factors, such as defendant’s
work history and medical condition, prior to imposing the drug program fee and
penalties. Moreover, based on defendant’s social, work, and medical history, there was
substantial evidence supporting a finding that he had the ability to pay the drug program
fee and penalties.
C. Booking Fee
Defendant contends that the trial court erred in imposing a $129.75 booking fee
under Government Code sections 29550, subdivision (a) and 29550.1. First, defendant
argues that this court should interpret these statutes as containing an implied ability to
pay requirement because corresponding provisions of the statutory scheme require
findings of an ability to pay. He contends that these statutes must be interpreted as
requiring an ability to pay finding to avoid equal protection problems. Second, although
defendant acknowledges that the court indicated he had the ability to pay the booking fee,
he once again argues that the court failed to consider his limited work history and his
medical condition. Defendant contends that there was no substantial evidence supporting
an ability to pay finding.
1. Legal Background
Government Code sections 29550, 29550.1, and 29550.2 authorize the imposition
of a fee on an arrestee who is ultimately convicted in order to cover the expenses
involved in booking or otherwise processing the arrestee in a county jail. “To some
degree, they vary based on the identity of the arresting agency. Arrests made by a ‘city,
special district, school district, community college district, college, university or other
local arresting agency’ are governed by Government Code sections 29550,

10
subdivision (a)(1) and 29550.1. Arrests made by a county are governed by Government
Code section 29550, subdivision (c) and those made by ‘any governmental entity not
specified in Section 29550 or 29550.1’ are governed by Government Code
section 29550.2, subdivision (a).” (People v. Pacheco (2010) 187 Cal.App.4th 1392,
1399, fn. 6 (Pacheco), disapproved on another ground in People v. McCullough (2013)
56 Cal.4th 589, 599 (McCullough).) Government Code sections 29550 and 29550.2
include provisions expressly requiring a finding that the person has the ability to pay the
fee (id., §§ 29550, subd. (d)(2), 29550.2, subd. (a)), whereas Government Code section
29550.1 does not contain such an express requirement. The applicability of these
sections depends on which governmental entity arrested the defendant. (McCullough,
supra, at p. 592; Pacheco, supra, at p. 1399, fn. 6.)
2. Analysis
Defendant was arrested by the San Jose Police Department, and therefore
Government Code sections 29550, subdivision (a)(1) and 29550.1 apply in this case.
Under Government Code section, 29550.1, the court was not required to make an ability
to pay finding in this case.
However, assuming that the trial court was required to make an ability to pay
finding based on principles of equal protection, it expressly did so here. Moreover, that
finding was supported by substantial evidence. As discussed, the probation report
included work history information, namely, defendant’s previous employment as a driver
for two years. Additionally, defendant will also be able to earn prison wages, in spite of
his medical condition. As we mentioned above, the court was apprised of defendant’s
medical history and was able to observe him in court. (See Staley, supra, 10 Cal.App.4th
at p. 786.) And thus, the court was in the best position of evaluating whether defendant
was able to work and earn wages in prison. (Ibid.)

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 D. Penalty Assessments
Lastly, defendant contends that the $450 penalty assessments on the drug
program fee and the $150 penalty assessments on the laboratory fee were incorrectly
calculated. He claims that they should have been $420 and $140 respectively.
Specifically, as to the drug program fee, he argues that the $45 state-only penalty to
finance Department of Justice forensic laboratories (Gov. Code § 76104.7) should have
been $15. As to the laboratory fee, he argues that the $15 penalty pursuant to
Government Code section 76104.7 should have been $5.
The Attorney General agrees that the penalty assessments were incorrectly
calculated, but claims that the penalty assessments on the drug program fee and the
laboratory fee should have been $427.50 and $142.50 respectively. The Attorney
General suggests that the point of discrepancy appears to be the 50 percent state
courthouse construction penalty imposed pursuant to Government Code section 70372.
In People v. Voit (2011) 200 Cal.App.4th 1353 (Voit), this court noted that “there
are seven assessments, surcharges, and penalties parasitic to an underlying fine.” (Id. at
p. 1374.) This court identified them as follows: “(1) a 100 percent state penalty
assessment (§ 1464, subd. (a)(1)), (2) a 20 percent state surcharge (§ 1465.7), (3) a
30 percent state courthouse construction penalty (Gov. Code, § 70372), (4) a 70 percent
additional penalty (Gov. Code, § 76000, subd. (a)(1)), (5) a 20 percent additional penalty
if authorized by the county board of supervisors for emergency medical services (Gov.
Code, § 76000.5, subd. (a)(1)), (6) a 10 percent additional penalty ‘ “[F]or the purpose of
implementing the DNA Fingerprint, Unsolved Crime and Innocence Protection Act” ’
(Gov. Code, § 76104.6, subd. (a)(1)), and (7) a 10 percent additional state-only penalty to
finance Department of Justice forensic laboratories (Gov. Code, § 76104.7). [Citation.]”
(Voit, supra, at pp. 1373-1374, fn. omitted; see also People v. Sharret (2011) 191
Cal.App.4th 859, 863-864.)

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 The state-only penalty to finance Department of Justice forensic laboratories
(Gov. Code, § 76104.7) was increased from 10 percent to 30 percent prior to defendant’s
July 13, 2010 and October 21, 2010 offenses. (See Stats. 2009-2010, 8th Ex. Sess., ch. 3,
§ 1, eff. June 10, 2010.) Thus, contrary to defendant’s assertion, the penalty imposed
pursuant to Government Code section 76104.7 was properly calculated at $45 and $15 for
the drug program fee and laboratory fee respectively.
Nevertheless, as the Attorney General points out, the state courthouse construction
penalty appears to be at issue here. As this court noted in Voit, supra, 200 Cal.App.4th at
p. 1374, “[i]dentifying the amount of the courthouse construction penalty is not as
straightforward as the others.”
At the time defendant committed his crimes, Government Code section 70372
provided: “Except as otherwise provided in subdivision (b) of Section 70375,” the state
court construction penalty was 50 percent (former Gov. Code, § 70372, subd. (a)(1);
Stats. 2009-2010, 2nd Ex. Sess., ch. 10, § 5, eff. May 21, 2009; Stats. 2010, ch. 720, § 16,
eff. Oct. 19, 2010), but it was subject to reduction by a county “as provided in
subdivision (b) of Section 70375.” (Former Gov. Code, § 70372, subd. (a)(2); Stats.
2009-2010, 2nd Ex. Sess., ch. 10, § 5; Stats. 2010, ch. 720, § 16, eff. Oct. 19, 2010.)
In People McCoy (2007) 156 Cal.App.4th 1246 (McCoy), the appellate court
explained that for a period of time Government Code section 70375, subdivision (b)
authorized two potential reductions in the 50 percent state court construction penalty, one
in the amount collected for deposit into a local courthouse construction fund pursuant to
Government Code section 76100, and the other in the amount collected for the
“Transitional State Court Facilities Construction Fund” to the extent it is funded by the
local courthouse construction fund. (McCoy, supra, at pp. 1252-1253; Stats. 2002,
ch. 1082, § 4; Stats. 2003, ch. 592, § 18.) By reference to a chart included in
Government Code section 76000, subdivision (e) that reflected the amounts various
counties were collecting for local courthouse construction, McCoy concluded that Los

13
Angeles County had, by virtue of its local courthouse collections, effectively reduced the
50 percent maximum to a 30 percent penalty assessment for state courthouse
construction. (McCoy, supra, at p. 1254.)
Following the reasoning of McCoy, we note that the versions of Government Code
section 76000, subdivision (e) applicable on July 13, 2010 and October 21, 2010, when
defendant committed his crimes, indicate that Santa Clara County was collecting $1.50
from the $7 penalty in Government Code section 76000 for local courthouse
construction. (Current and former Gov. Code, § 76000; Stats. 2008, ch. 218 § 5.) In
other words, the state court construction fee of $5 per $10 fine was reduced to $3.50, or
35 percent, at that time. Following People v. High (2004) 119 Cal.App.4th 1192, in
which the court concluded that punitive fund raising measures cannot be applied
retroactively (id. at pp. 1197-1199), we apply the statutes (Gov. Code, §§ 70372, 70375,
76000) in effect at the time of defendant’s crimes in order to avoid an ex post facto
expansion of defendant’s punishment by later statutory amendments. Applying these
principles, the state courthouse construction penalty for the drug program fee and the
laboratory fee were $52.50 and $17.50 respectively.
According to our calculation, the total amount of penalty assessments applicable
to defendant’s drug program fee and laboratory fee are $427.50 and $142.50 respectively
(a 100 percent penalty under section 1464, subdivision (a), a 20 percent penalty under
section 1465.7, a 35 percent penalty under Government Code section 70372, a
70 percent penalty under Government Code section 76000, subdivision (a)(1), a
20 percent penalty under Government Code section 76000.5 subdivision (a)(1), a
10 percent penalty under Government Code section 76104.6 subdivision (a)(1), and a
30 percent penalty under former Government Code section 76104.7).

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 DISPOSITION
The judgment is modified to reflect the following fees and penalty assessments:
(1) $150 in drug program fees, plus $427.50 in penalty assessments; and (2) $50 in
laboratory fees, plus $142.50 in penalty assessments. As modified, the judgment is
affirmed.

___________________________________________
BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

__________________________
MIHARA, J.

__________________________
GROVER, J.

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