People v. Ricardez CA4/1

Filed 6/9/15 P. v. Ricardez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D064561

Plaintiff and Respondent,

v. (Super. Ct. No. SCN303431)

SAMUEL ORTEGA RICARDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Kimberlee

A. Lagotta, Judge. Reversed in part and remanded with directions.

Arthur Martin, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Tony DaSilva and Parag Agrawal, Deputy Attorneys General, for Plaintiff and

Respondent.
 A jury convicted defendant and appellant Samuel Ortega Ricardez of first degree

murder (Pen. Code,1 § 187) and robbery (§ 211), both with firearm (§ 12022.53,

subds. (d) & (b)) and criminal street gang (§ 186.22, subd. (b)(1)) enhancements.

Although Ricardez was 16 years old at the time of the offenses, the trial court sentenced

Ricardez to 25 years to life for the murder conviction with a consecutive 25 years to life

sentence for the gun enhancement, a consecutive five-year sentence for the robbery and

consecutive 10-year terms for the gun and criminal street gang enhancements. Taken

together, Ricardez was sentenced to a prison term of 75 years to life. Ricardez appeals,

contending the trial court erred by failing to instruct on voluntary manslaughter as a

lesser included offense of murder. Additionally, Ricardez argues that his sentence is

functionally life without the possibility of parole and that, therefore, in light of his status

as a juvenile at the time of the offenses, the sentence violates his constitutional rights

under the Eighth Amendment to the United States Constitution.

Although we find no instructional error, we agree that his sentence is the

functional equivalent of a life sentence without the possibility of parole and violates his

Eighth Amendment rights.

FACTUAL BACKGROUND

On an early morning in March 2012, Ricardez, a member of a criminal street gang,

and two confederates entered rival gang territory to "tag" the area with threatening

graffiti.2 Ricardez carried a weapon with him that he described as a wooden, two-piece

1 All further statutory references are to the Penal Code, unless otherwise specified.

2 Ricardez admitted to being a member of the Posole gang.
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firearm similar to a rifle. Ricardez's group saw another youth, Damien B., walking

around the neighborhood; Ricardez's group chased Damian and caught him. Ricardez

pointed his firearm at Damien. Damien told Ricardez's group that he "wasn't banging . . .

so they wouldn't shoot." Ricardez responded "Oh, you're Black," and Damien surmised

that "they probably didn't think that I was a gang member because I was Black."

Ricardez and his cohorts proceeded to rob Damien of his possessions, including an iPod,

a baseball hat, and a necklace. They then released Damien, who went back to his nearby

home and told his father what had happened.

After robbing Damien, Ricardez and his companions separated but remained in the

rival gang area. Ricardez saw what he thought were rival gang members, so he hid under

a vehicle. After a period of time and believing it was safe to do so, Ricardez left his

hiding place and walked past a house where Antonio Perez was sitting on the porch with

two of his cousins and a friend. Perez saw Ricardez and called out to him. Ricardez

knew Perez, and he also knew Perez associated with rival gang members. By his own

later admission to detectives, Ricardez then shot Perez with the firearm he was carrying.

Perez walked towards the house and collapsed in the doorway. One of Perez's cousins

chased Ricardez but lost sight of him as Ricardez ran through a nearby apartment

complex. Perez's other cousin held Perez in his arms until police arrived. A medical

examiner determined that Perez died due to a shotgun blast to his abdomen.

Detectives found recently painted graffiti associated with Ricardez's gang in the

neighborhood near the crime scene. Because Ricardez was known as a graffiti "tagger"

for his gang, detectives brought Ricardez to the police station to interview him. During

the interview, Ricardez confessed that he was a gang member, that he and his

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companions entered rival gang territory for the purpose of tagging, that he carried a

firearm, and that he and his group robbed Damien at gunpoint. Ricardez also admitted

that he shot Perez. In the interview, Ricardez indicated that he was holding his gun; that

he heard Perez say, "What the fuck?"; and that he then turned and shot Perez. Ricardez

stated he was scared and fired his gun as he turned around to face Perez: "I just turn

around, and then I was, like, 'Fuck. Fuck.' Bam. That shit just shot." The jury watched

a video recording of Ricardez's interview at trial.

At trial, Ricardez testified on his own behalf. While he testified that he and his

group walked into the rival gang's neighborhood for the purpose of "tagging," that he

carried a firearm, and that his group robbed Damien, he denied shooting Perez. Ricardez

stated that he had lied to the detectives during the interview because they were lying to

him. He said he claimed responsibility for shooting and killing Perez because "I wasn't

paying attention" and "[b]ecause I didn't want to be there no more." The jury found

Ricardez guilty of first degree murder and armed robbery, and found true the alleged

firearm and gang enhancements.

DISCUSSION

I

Voluntary Manslaughter

Ricardez contends the trial court should have instructed sua sponte on the lesser

included offense of voluntary manslaughter because Ricardez told the interviewing

detectives that he was frightened at the time he shot Perez. For a number of reasons, we

disagree.

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 A. Trial Court's Instruction Rulings

Prior to the close of trial, the trial court conducted a conference on jury

instructions. Initially, Ricardez's counsel asked the trial court to give an instruction on

manslaughter as a lesser included offense of the charged crime of first degree murder.

Counsel made the request after and in response to the prosecution's request for a lesser

included offense instruction on second degree murder, which the trial court granted.

Ricardez's counsel expressed a great deal of equivocation about her request for a

manslaughter instruction and acknowledged that it was inconsistent with the defense

theory that Ricardez did not shoot Perez. Counsel stated: "So the court knows the logic

behind it, my theory was an all-or-nothing theory; however, since the People are asking

for second, and even though I can argue that it's opposite to my theory, there is evidence

that would support the second degree.

"And do I believe if they are going to have some lesser, it should be also offered

the opportunity for another lesser. I am requesting that other lesser."

When the trial court inquired as to what theory supported a manslaughter

instruction counsel stated:

"May I have a second? As I said, I am sort of thinking this through by virtue of

what -- even though my theory is kind of the opposite." The trial court then took a break

and gave defense counsel an opportunity to consider her request for a manslaughter

instruction. An hour later, proceedings resumed and counsel stated: "After substantial

discussion, your honor, the defense will not be requesting any lesser included offenses."

The trial court responded that, in any event, it did not believe there was substantial

evidence of voluntary manslaughter under either a theory of imperfect self-defense or

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heat of passion; the trial court then asked Ricardez's counsel: "And, therefore, is it your

tactical decision, then, [defense counsel], to request no lesser manslaughter instructions

because you intend to argue that your client did not participate in any way in the

homicide?" Ricardez's counsel responded in the affirmative.

The trial court then stated: "All right. I further find that, over your objection, I

[do not have] a sua sponte duty to include manslaughter instructions, voluntary

manslaughter instructions, based upon the evidence in this case because, as I said,

defendant denies being at the scene."

The trial court expressly rejected the possibility Ricardez's statements to detectives

at the police station would support a manslaughter conviction: "[T]he defendant

indicated to the police officers that he was armed with a shotgun, participated in tagging,

participated in the robbery of Damien B., that he was armed with a shotgun during the

course of that robbery, and then following the robbery, the defendant crept military style

along the fence bordering the patio area of the victim's complex and front patio and,

when reaching an opening in the fence, the defendant pointed a shotgun through the

fence.

"There is some indication that the victim or someone said, what the fuck? And the

defendant admits shooting through the fence at the victim and then fleeing from the

scene.

"There appears to be no evidence of -- even based upon the defendant's statement

to the police, of heat of passion or imperfect self-defense where the defendant would be

under his own subjective belief that he had the need to defend as the defendant was at

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that location of his own volition and shot the gun without any indication of either

imperfect self-defense or reasonable self-defense."

B. Legal Principles

A trial court must sua sponte instruct the jury on all lesser offenses for which there

is substantial evidentiary support. (People v. Breverman (1998) 19 Cal.4th 142, 153-154;

People v. Birks (1998) 19 Cal.4th 108, 112.) "Substantial evidence" is defined as

"'evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]'"

that a lesser offense was committed. (People v. Flannel (1979) 25 Cal.3d 668, 684,

overruled on other grounds by In re Christian S. (1994) 7 Cal.4th 768, 777.) Substantial

evidence is evidence "sufficient to 'deserve consideration by the jury,' that is, evidence

that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186,

201, fn. 8 (Barton).) But the evidence will not compel a sua sponte instruction on a lesser

included offense unless it is "substantial enough to merit consideration." (People v.

Flannel, supra, at p. 684, fn. 12.) "[S]peculation is not evidence, less still substantial

evidence." (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds

by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) "The court may refuse to instruct on

a lesser included offense, despite defendant's request, when there is no evidence to

support that instruction." (People v. Daniels (1991) 52 Cal.3d 815, 868.)

A trial court is empowered and duty bound to give a lesser included offense

instruction over a defendant's objection when there is substantial evidence of the lesser

offense. (Barton, supra, 12 Cal.4th at pp. 196-198.) Thus, in Barton, the trial court did

not err in giving a manslaughter instruction over the defendant's objection, even though,

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as here, the defendant was pursuing an "all or nothing" strategy and the jury returned a

manslaughter conviction. (Ibid.)

However, when a defendant has expressly objected to a lesser included offense

instruction or otherwise indicated his opposition to such instruction, and the trial court

withholds the lesser included instruction, the defendant may not, on appeal, then argue

that such an instruction should have nonetheless been given. (See Barton, supra, 12

Cal.4th at p. 198; see also People v. Cooper (1991) 53 Cal.3d 771, 830-831 (Cooper);

People v. Prince (2007) 40 Cal.4th 1179, 1265.) A defendant's objection to a lesser

included offense instruction, or his expression of consent or agreement that such an

instruction be withheld from the jury, raises the bar of invited error. (See Barton, at p.

198.)

C. Analysis

1. Invited Error

As the Attorney General points out, Ricardez's contention that a manslaughter

instruction should have been given is barred by the doctrine of invited error. Invited error

will be found "'if counsel expresses a deliberate tactical purpose in suggesting, resisting,

or acceding to an instruction . . . .' [Citation.]" (Cooper, supra, 53 Cal.3d at p. 830,

italics added.) "'If defense counsel intentionally caused the trial court to err, the appellant

cannot be heard to complain on appeal.' [Citation.]" (Ibid.)

Here, the record is clear that, for obvious tactical reasons, Ricardez's counsel did

not want the trial court to give the jury the opportunity to convict her client of voluntary

manslaughter. As counsel herself stated, a voluntary manslaughter theory was

inconsistent with the defense's contention that Ricardez was not the shooter. In this

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context, counsel's withdrawal of the requested manslaughter instruction, for express

tactical reasons, was acquiescence in the trial court's decision not to give such an

instruction sufficient to raise the bar of invited error. (See Cooper, supra, 53 Cal.3d at p.

830.)

2. Substantial Evidence

Even if Ricardez had asked for a manslaughter instruction, on this record the trial

court was not required to give one. As the trial court noted, Ricardez's statements to

detectives were not substantial evidence that when he shot Perez he was acting out of any

perceived imminent threat of serious injury or death; thus, there was no substantial

evidence to support a voluntary manslaughter conviction.

Our Supreme Court has established narrow parameters for the theory of imperfect

self-defense embodied in voluntary manslaughter and asserted by Ricardez on appeal:

"We caution, however, that the doctrine is narrow. It requires without exception that the

defendant must have had an actual belief in the need for self-defense. We also

emphasize what should be obvious. Fear of future harm—no matter how great the fear

and no matter how great the likelihood of the harm—will not suffice. The defendant's

fear must be of imminent danger to life or great bodily injury. '"[T]he peril must appear

to the defendant as immediate and present and not prospective or even in the near future.

An imminent peril is one that, from appearances, must be instantly dealt with." . . . [¶]

This definition of imminence reflects the great value our society places on human life.'

(People v. Aris (1989) 215 Cal.App.3d 1178, 1187, 1189, italics added.) Put simply, the

trier of fact must find an actual fear of an imminent harm. Without this finding,

imperfect self-defense is no defense. [¶] We also emphasize that whether the defendant

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actually held the required belief is to be determined by the trier of fact based on all the

relevant facts. It is not required to accept the defendant's bare assertion of such a fear.

And, of course, a defendant's evidence of self-defense is subject to all the normal

evidentiary rules, including Evidence Code sections 350 and 352. Finally, we reiterate

that, just as with perfect self-defense or any defense, '[a] trial court need give a requested

instruction concerning a defense only if there is substantial evidence to support the

defense.' (People v. Aris, supra, 215 Cal.App.3d at p. 1192, italics added.)" (In re

Christian S., supra, 7 Cal.4th at p. 783.)

The Supreme Court elaborated on the narrowness of self-defense in People v.

Humphrey (1996) 13 Cal.4th 1073, 1094: "The law thus recognizes that the objective

component is not measured by an abstract standard of reasonableness but one based on

the defendant's perception of imminent harm or death. Because his state of mind is a

critical issue, he may explain his actions in light of his knowledge concerning the victim.

[Citations.] Antecedent threats as well as the victim's reputation for violence, prior

'assaults, and other circumstances [are] relevant to interpreting the attacker's behavior.'

[Citations.] While such considerations alone do not establish a right of self-defense

[citation], they illuminate and reflect on the reasonableness of defendant's perception of

both the imminence of danger and the need to resist with the degree of force applied.

[Citation.] They may also justify the defendant 'in acting more quickly and taking

harsher measures for her own protection in the event of assault, whether actual or

threatened, than would a person who had not received such threats.' [Citation.]"

Here, Ricardez offered no evidence he was reacting to imminent danger, as

opposed to a generalized fear of rival gang members. In this regard, the trial court's

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observations of what, according to Ricardez's own statement to detectives, he was doing

in the moments before he fired his weapon, are pertinent: Ricardez had been committing

crimes in the rival gang's territory and was sneaking along a fence line with his weapon,

apparently at the ready. He then shot at the first voice he heard, which at most simply

challenged his presence in the area with a gun. On this record, no reasonable jury would

find that Ricardez, even in the version of events he gave detectives, was responding to

any imminent threat to his safety.

In sum, the trial court did not err when it failed to sua sponte instruct on the lesser

included offense of voluntary manslaughter.

3. Prejudice

Finally, we note that even if an instruction on manslaughter had been requested

and was required, Ricardez would not have been prejudiced by the trial court's failure to

provide it. A trial court's error in failing to provide a required instruction is governed by

People v. Watson (1956) 46 Cal.2d 818, 836 and thus requires reversal "only if 'the court,

"after an examination of the entire cause, including the evidence," is of the "opinion" that

it is reasonably probable that a result more favorable to [defendant] would have been

reached in the absence of the error.' [Citations.]" (People v. Wharton (1991) 53 Cal.3d

522, 571.) Here, the jury's first degree murder verdict entirely eliminates the possibility

of any prejudice.

In finding that when he shot Perez he was acting with premeditation, willfulness

and deliberation, and not simply the intent to kill that would permit only a second degree

murder verdict, the jury as a practical matter rejected the suggestion that Ricardez was

acting on any impulse or fear of imminent harm. (See People v. Wharton, supra, 53

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Cal.3d at p. 572.) Although theoretically, as Ricardez argues, it is possible to premediate

and deliberate a killing in self-defense—where, for instance, a defendant was trapped for

a period of time and had been threatened with death or serious injury—the jury was not

considering such a theoretical case, and we are not charged with reviewing one. Here,

the record presented to the jury, and the one we must review, shows Ricardez was, as the

trial court noted, on the prowl in a rival neighborhood and armed with a weapon he had

already used to commit a robbery; in that factual context, the jury's finding that he killed

with premeditation, willfulness and deliberation eliminated any possibility that the jury

would have nonetheless found he acted because of any fear of imminent harm.

II

De Facto Life Without Parole Sentence

Additionally, Ricardez argues his sentence violates the Eighth Amendment to the

Constitution because it is cruel and unusual to sentence a juvenile offender to a term that

is functionally equivalent to life without the possibility of parole (LWOP). He further

argues that enactment of section 3051 did not remedy this defect in his sentence. We

agree that on its face a 75-year sentence imposed on a juvenile may, in the absence of an

appropriate trial court record, be cruel and unusual; we also agree that enactment of

section 3051 did not remedy the defect in Ricardez's sentence.

In Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 183 L.Ed.2d 407]

(Miller), the United States Supreme Court "found that mandatory life sentences for

juveniles offended two strands of the court's sentencing jurisprudence: a group of cases

which found that the severe punishments of capital punishment and mandatory life

without the possibility of parole in nonhomicide cases, may not be imposed on certain

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classes of criminals, such as juveniles, perpetrators of nonhomicide offenses, or the

mentally retarded [citations], because those punishments are disproportionate to the

culpability of members of those classes; and a second related line of cases which requires

that before capital punishment or its equivalent may be imposed, sentencing authorities

must consider the particular characteristics of the defendant and the details of the

offense." (People v. Chavez (2014) 228 Cal.App.4th 18, 29 (Chavez), citing, among

other cases, Miller, supra, 132 S.Ct. at pp. 2463-2464.) Thus, the Miller court held "the

Eighth Amendment forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders. . . . Although we do not foreclose a

sentencer's ability to make that judgment in homicide cases, we require it to take into

account how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison." (Miller, supra, 132 S.Ct. at p. 2469, fn.

omitted.)

Cognizant of both the United States Supreme Court and our own Supreme Court's

jurisprudence on the issue, we have held that before we can affirm these severest of

possible sentences for a juvenile offense, we must have confidence that the trial court,

fully informed of its discretion, determined that rather than transient immaturity that

would require some degree of leniency, the juvenile's act reflected irreparable corruption

that must be punished as severely as possible. (Chavez, supra, 228 Cal.App.4th at pp.

33-34.)

As we have noted, Ricardez was 16 years old at the time he committed the subject

offenses, and the trial court imposed a 75-years-to-life sentence on him. We agree with

Ricardez that this sentence is the functional equivalent of life without parole. In the

13
absence of a record that reflects a determination by the trial court as to the nature of the

offense, such a sentence is, on its face, cruel and unusual. (See Chavez, supra, 228

Cal.App.4th at pp. 33-34.)

Section 3051, which was enacted in 2013 and became effective on January 1,

2014, permits Ricardez to apply for parole in 25 years. Ricardez will be eligible for

parole pursuant to subdivision (b)(3) of section 3051, which states: "A person who was

convicted of a controlling offense that was committed before the person had attained 18

years of age and for which the sentence is a life term of 25 years to life shall be eligible

for release on parole by the board during his or her 25th year of incarceration at a youth

offender parole hearing, unless previously released or entitled to an earlier parole

consideration hearing pursuant to other statutory provisions."

The Legislature enacted section 3051 specifically to comply with United States

Supreme Court and California Eighth Amendment cases concerning juvenile life

sentences. "The purpose of this act is to establish a parole eligibility mechanism that

provides a person serving a sentence for crimes that he or she committed as a juvenile the

opportunity to obtain release when he or she has shown that he or she has been

rehabilitated and gained maturity, in accordance with the decision of the California

Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 and the decisions of the

United States Supreme Court in Graham v. Florida (2010) 560 U.S. 48, and Miller v.

Alabama[, supra,] 183 L.Ed.2d 407." (Stats. 2013, ch. 312, § 1.) Under section 3051,

"most youth offenders would be eligible for a parole hearing after a maximum of 25 years

of incarceration, within the normal life expectancy of a juvenile." (People v. Scott (2015)

235 Cal.App.4th 397, 408.)

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 However, unlike the court in People v. Scott, supra, we do not believe section

3051 has remedied constitutional concerns of cruel and unusual punishment, when, as

here, a de facto life sentence has been imposed. The Attorney General asserts that

section 3051 renders moot Ricardez's cruel and unusual punishment claim because it

provides a "meaningful opportunity for release on parole" during his lifetime. However,

as a practical matter, at the time Ricardez becomes eligible for parole, there will be no

reliable way to measure his cognitive abilities, maturity, and other youth factors at the

time he committed his offense 25 years earlier. An accurate evaluation of the youth

factors discussed in Miller can only be done at the time of the initial sentencing

hearing—not 25 years in the future.

It is the trial court's role to consider "all mitigating circumstances attendant in the

juvenile's crime and life," thus enabling the Board of Parole Hearings to later determine

"whether the juvenile offender must be released from prison 'based on demonstrated

maturity and rehabilitation.' [Citation.]" (People v. Caballero, supra, 55 Cal.4th at pp.

268-269 (Caballero).) Likewise, Miller establishes that the sentencing court must

consider particular factors prior to imposing sentence. (Miller, supra, 132 S.Ct. at p.

2468.)

Our conclusion is buttressed by the California Supreme Court's resolution of a

similar issue in People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). In Gutierrez, the

court considered the impact of Miller on section 190.5, subdivision (b), which had

previously been interpreted "as establishing a presumption in favor of life without parole

for juvenile offenders who were 16 years of age or older when they committed special

circumstance murder." (Gutierrez, at p. 1369.) The California Supreme Court concluded

15
that "section 190.5[, subdivision ](b), properly construed, confers discretion on a trial

court to sentence a 16- or 17-year-old juvenile convicted of special circumstance murder

to life without parole or to 25 years to life, with no presumption in favor of life without

parole." (Id. at p. 1360.) The Gutierrez court further held that "consideration of the

Miller factors" is required when a sentencing court is determining whether to impose an

LWOP sentence pursuant to section 190.5, subdivision (b). (Gutierrez, at p. 1387.)

The Gutierrez court considered whether section 1170, subdivision (d)(2) provided

a substitute for the resentencing process mandated by Miller. (Gutierrez, supra, 58

Cal.4th at p. 1386.) Section 1170, subdivision (d)(2) provides a procedural mechanism

for resentencing to defendants who were under the age of 18 at the time of the

commission of their offenses and who were given LWOP sentences. If the defendant has

served at least 15 years of the LWOP sentence, he or she may "submit to the sentencing

court a petition for recall and resentencing" (§ 1170, subd. (d)(2)(A)(i)), so long as the

LWOP sentence was not imposed for certain enumerated offenses (id., subd.

(d)(2)(A)(ii)).

The Gutierrez court rejected the Attorney General's argument that the "potential

mechanism for resentencing" provided by section 1170, subdivision (d)(2) "mean[s] that

the initial sentence 'is thus no longer effectively a sentence of life without the possibility

of parole.'" (Gutierrez, supra, 58 Cal.4th at p. 1386.) The Gutierrez court reasoned: "A

sentence of life without parole under section 190.5[, subdivision ](b) remains fully

effective after the enactment of section 1170[, subdivision ](d)(2). That is why section

1170[, subdivision ](d)(2) sets forth a scheme for recalling the sentence and resentencing

the defendant." (Ibid., italics omitted.)

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 The Gutierrez court further rejected the Attorney General's claim that section

1170, subdivision (d)(2) "removes life without parole sentences for juvenile offenders

from the ambit of Miller's concerns because the statute provides a meaningful

opportunity for such offenders to obtain release." (Gutierrez, supra, 58 Cal.4th at p.

1386.) The court held that what Miller required for juvenile offenders sentenced to

LWOP was not a "'meaningful opportunity to obtain release'" but a sentencing court's

exercise of discretion "'at the outset.'" (Ibid., italics omitted.)

In sum, in light of our careful review of Miller, Caballero, Gutierrez, and Chavez,

we conclude that the enactment of section 3051 does not render moot Ricardez's claim

that his sentence is a de facto LWOP sentence that violates the Eighth Amendment.

DISPOSITION

Because Ricardez's sentence of 75 years to life is a de facto life without parole

sentence, he is entitled to resentencing under Graham, Miller, Caballero, and Chavez.

Ricardez's sentence is reversed, and the matter is remanded for resentencing. In all other

respects, the judgment of conviction is affirmed.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

O'ROURKE, J.

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