People v. Savala CA2/3

Filed 6/24/15 P. v. Savala CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B246215

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA338581)
v.

CHRISTOPHER SAVALA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Ronald S. Coen, Judge. Affirmed as modified.
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Analee
J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
 Defendant and appellant, Christopher Savala, raises numerous contentions
following his conviction of two counts of special circumstances first degree murder, with
enhancements for personal firearm use and gang-related felonies.
For the reasons discussed below, the judgment is affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rules of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Introduction.
Defendant Savala killed two unarmed men after learning they belonged to a rival
gang. Savala had gone to a house in neutral territory to pick up a friend and he stayed to
drink a beer. The two victims, Diego Vargas and Benjamin Renteria, arrived by truck
shortly thereafter. There was a brief verbal exchange acknowledging their mutual gang
animosity. One of the victims went to park the truck down the street. As the victim was
walking back toward the house, Savala rushed up and shot him in the face and chest at
close range. The other victim tried to flee, but Savala chased after him and shot him
seven times. Savala fled the scene and the gun was never found.
2. The eyewitnesses.
a. Juan Padilla.
Juan Padilla testified he spent the day of the shooting, March 31, 2008, with
Savala. Padilla knew Savala as “Player,” a member of the Orchard Street gang. Padilla
himself was not a gang member. On that day, Padilla and Savala drove in Savala’s car to
somebody’s house “to hang out” and “party.” There were five or six people outside the
house. The atmosphere was friendly and Savala got out of the car to chat with people.
Because Padilla did not know any of them, he got himself a beer and went back to
Savala’s car.
Vargas and Renteria arrived in a truck and pulled up in front of the house. Padilla
did not know them. They spoke to Cesar Toscano, one of the people congregated outside
the house. Padilla noticed that Savala and at least one of the two newcomers were having
a disagreement, but he was too far away to hear what they were arguing about. He

2
thought Renteria was “mad-dogging”1 Savala. Toscano spoke to Savala and tried to calm
things down.2 Savala was standing on the sidewalk in front of the house; he told Padilla
to move closer to him, so Padilla got out of the car and walked to within a foot or two of
him.
Vargas told Renteria to move the truck. Renteria parked it across the street and
then started walking back toward the house. At that point, Savala “went up to [Renteria]
and said, ‘Fuck you, homie,’ and started shooting.” When Vargas saw Savala shoot
Renteria, Vargas screamed, “Fuck you, ese,” and began running away. Savala ran after
Vargas and shot him. Vargas fell to the ground and Savala shot him again.
Savala told Padilla and Toscano to get in his car and he drove to a Jack in the Box.
He threatened to kill them if they said anything about the shootings. After eating, Savala
dropped Toscano off at a bus stop, telling him to “stay quiet.” Savala then drove with
Padilla to a friend’s house. Savala and his friend walked off for a few minutes and then
returned. Padilla heard one of them say, “Don’t worry about it. I’ll get rid of it.” Later
that same day, the police stopped the car and arrested Savala and Padilla.
b. Cesar Toscano.
Cesar Toscano knew Savala because they were both originally from the Orchard
Street neighborhood. Toscano was a member of the Orchard Street gang at the time of
the shootings. Toscano testified he thought of Diego Vargas, one of the victims, as his
brother-in-law because Vargas was engaged to marry Toscano’s sister.
On the day of the shootings, Vargas dropped Toscano and Flores off at Gabriela
Gutierrez’s house, saying he would return later to pick up Toscano. However, when
Vargas did not return, Toscano called Savala for a ride. Savala arrived at Gutierrez’s
house with Padilla. They had only been there for a few minutes when Vargas drove up.

1
“ ‘Mad-dogging’ is an expression used by gang members to describe certain
behaviors, including looking at someone to intimidate them.” (People v. Torres (2008)
163 Cal.App.4th 1420, 1423, fn. 2.)
2
Padilla testified Toscano was “talking to [Savala to], like, maybe, like, change his
mind.”

3
Toscano testified, “[A]nd next thing you know [Savala] started gang-banging on my
brother-in-law.” When Savala asked Vargas and Renteria, “Where are you from?”
Renteria answered, “Maywood Locos.” Toscano testified that Maywood Locos and
Orchard Street were rival street gangs.
At this point, Vargas told Renteria to move the truck, so Renteria parked the truck
down the street. As he began walking back toward Gutierrez’s house, Savala pulled out a
gun and shot Renteria in the chest. Toscano testified Savala then “went after [Vargas]
and he started firing the rest of the rounds” at him. Savala ordered Toscano to get into
Savala’s car and he complied because he was scared. Padilla got into the car, too. Savala
drove to Lynwood and “dropped off” the gun. Savala told Toscano he would “get
smoked too” if he talked about the shootings.
c. Recardo Flores.
The jury heard a recorded police interview between Recardo Flores and Sergeant
Cooper. Flores said he had been at Toscano’s house when Vargas arrived. They drank
some beer and then Vargas dropped them off at Gutierrez’s house. At some point, Savala
and Padilla drove by and Toscano asked them for a ride. Savala made a u-turn and
parked in Gutierrez’s driveway. Savala got out and started talking to Flores, Gutierrez,
and Toscano while Padilla stayed in the car. A few minutes later, Vargas and Renteria
arrived in a truck. Vargas parked the truck in front of Gutierrez’s driveway. Savala and
Vargas argued. Flores said Savala was “pissed off” at Vargas: “[T]hey had a beef or
something” because they were from different neighborhoods. Flores said Renteria was in
the Maywood Locos gang and that Vargas used to be in the Maywood Locos gang.
Savala was from the Orchard Street gang. Padilla got out of Savala’s car at some point
after Vargas and Renteria arrived. Vargas told Renteria to move the truck further down
the street. As Renteria was coming back, Flores saw Savala run down the sidewalk
toward Renteria and pull a gun from the front of his pants.
The following exchange occurred between Flores and Sergeant Cooper regarding
Savala’s interaction with Padilla just before Savala shot Renteria:

4
 “[Flores]: Gray shirt [i.e., Padilla]? Well, he was right there. Like I guess Player
[i.e., Savala] told him . . . unlock the car, you know, get the car running.
“[Cooper]: When . . . does Player tell him this?
“[Flores]: When he was like about to run.
“[Cooper]: He yells back at the dude?
“[Flores]: He’s like oh, get ready, get ready, like that.
“[Cooper]: So what does the guy in the gray shirt do?
“[Flores]: He just hops [in], I guess to move the car.”
Sergeant Cooper then asked Flores to clarify what Savala had said to Padilla just
before the shooting:
“[Cooper]: . . . Before the shooting happens, you hear . . . Player yell at the dude
that’s in his passenger seat initially –
“[Flores]: Before he . . . shot him.
“[Cooper]: Yeah, before he shoots at the other two dudes, ‘Hey, get, get ready.’
“[Flores]: Yeah.”
d. Gabriela Gutierrez.
Sergeant Cooper had recorded an interview with Gabriela Gutierrez on the day of
the shootings that was played for the jury. Gutierrez said Flores and Toscano had been
dropped off at her house by Vargas and Renteria. Gutierrez was sitting outside with them
drinking beer. When Savala and Padilla drove by, Toscano and Flores flagged them
down. Savala parked, got out of his car, and then stood in the yard drinking a beer and
talking to Toscano. Padilla stayed in the car. A few minutes later, Vargas and Renteria
arrived in a truck. Toscano approached the truck and spoke to Renteria. Savala joined
them, and he and Renteria argued. Gutierrez couldn’t hear what they were saying but she
could tell they were arguing. Toscano “was telling them to calm down, both of them.”
Vargas “was telling [Savala] . . . to keep it cool. Just like, I know that they don’t get
along but to be friends.” Renteria went to move the truck to the other side of the street,
while Vargas kept telling Savala to calm down:

5
 “[Cooper]: . . . You heard [Vargas] telling [Savala] just to be cool. We know . . .
we don’t get along but let’s just be cool, be chill.
“[Gutierrez]: Yes.”
Gutierrez said Vargas was still trying to calm Savala down, “telling him just be
friends. And that’s when [Savala] started walking fast, started walking towards
[Renteria].” At that point, Flores told Gutierrez to go into the house. As Flores and
Gutierrez were moving toward her house, she heard gunshots.
2. Physical evidence.
Renteria and Vargas both died from multiple gunshot wounds. Renteria had been
shot once in the face and once in the chest, from about 18 inches away. Vargas had been
shot a total of seven times, four times in the head; six of those bullets had been fired at
him from behind. The murder weapon was never found.
3. Gang evidence.
Conrad Chacon of the Huntington Park Police Department testified as a gang
expert. He was familiar with the Orchard Street gang. Their primary activities ranged
from graffiti to robbery to murder. Orchard Street claimed as its territory the City of Bell
and parts of Huntington Park. Its territory bordered the City of Maywood, which was
claimed by the Maywood Locos gang. The Maywood Locos and Orchard Street gangs
were rivals.
Chacon testified Savala was known as “Player,” a member of the Orchard Street
gang. A tattoo on Savala’s abdomen consisted of initials standing for “Orchard Street
Locos.” Chacon was asked to consider a hypothetical situation based on the facts of this
case: A gunman confronts two members of a rival gang on a residential street in broad
daylight, an argument ensues, and the gunman kills one victim at close range and then
chases down and kills the other victim. Chacon opined the gunman’s actions would
benefit his gang because it was “a brazen shooting that occurred in the middle of the
afternoon” in a public place. The shooting would enhance the gunman’s image within
the gang, prove his loyalty, instill fear and anger in the rival gang, and make witnesses
reluctant to cooperate with law enforcement for fear of gang retaliation.

6
 4. Conviction and sentence.
Savala was convicted of two counts of special circumstances first degree murder
(multiple murder and gang related), with enhancements for personal firearm use and
gang-related felonies. (Pen. Code, §§ 187, 190.2, subds. (a)(3) & (22), 12022.53, 186.22,
subd. (b)).3 He was sentenced to state prison for a term of two consecutive terms of life
without possibility of parole for the special circumstance murders, plus two consecutive
terms of 25 years to life for the personal firearm use enhancements. The trial court
imposed and stayed two 10-year gang enhancement terms. This appeal followed.
CONTENTIONS
Savala contends: (1) there was insufficient evidence to sustain the first degree
murder convictions; (2) there was insufficient evidence to sustain the gang special
circumstance and the gang enhancement findings; (3) the trial court erred in refusing to
instruct the jury on voluntary manslaughter; (4) the trial court erred in giving the jury a
flight instruction; (5) the trial court erred in instructing the jury with CALJIC No. 2.21.2;
(6) the trial court erred in giving the standard reasonable doubt instruction, CALJIC
No. 2.90; (7) the trial court erred in instructing the jury with CALJIC No. 2.80
(qualifications of expert witness); (8) the trial court erred in admitting evidence of prior
inconsistent statements; and (9) there was cumulative error.
DISCUSSION
1. Sufficient evidence of first degree murder.
Savala contends there was insufficient evidence to sustain his two convictions for
first degree murder because the prosecution failed to prove premeditation and
deliberation. There is no merit to this claim.

3
All further statutory references are to the Penal Code unless otherwise specified.

7
 a. Legal principles.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence – that is, evidence that is reasonable, credible, and of
solid value – such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under
principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.)
‘ “Although it is the duty of the jury to acquit a defendant if it finds that
circumstantial evidence is susceptible of two interpretations, one of which suggests guilt
and the other innocence [citations], it is the jury, not the appellate court[,] which must be
convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez,
supra, 20 Cal.4th at p. 11.) “ ‘An appellate court must accept logical inferences that the
[finder of fact] might have drawn from the circumstantial evidence.’ [Citation.] ‘Before

8
the judgment of the trial court can be set aside for the insufficiency of the evidence, it
must clearly appear that on no hypothesis whatever is there sufficient substantial
evidence to support the verdict of the [finder of fact].’ [Citation.]” (People v. Sanghera
(2006) 139 Cal.App.4th 1567, 1573.) As our Supreme Court said in People v. Rodriguez,
supra, 20 Cal.4th 1, while reversing an insufficient evidence finding because the
reviewing court had rejected contrary, but equally logical, inferences the jury might have
drawn: “The [Court of Appeal] majority’s reasoning . . . amounted to nothing more than
a different weighing of the evidence, one the jury might well have considered and
rejected. The Attorney General’s inferences from the evidence were no more inherently
speculative than the majority’s; consequently, the majority erred in substituting its own
assessment of the evidence for that of the jury.” (Id. at p. 12, italics added.)
The various types of premeditation and deliberation evidence have been described
as follows: “The type of evidence which this court has found sufficient to sustain a
finding of premeditation and deliberation falls into three basic categories: (1) facts about
how and what defendant did prior to the actual killing which show that the defendant was
engaged in activity directed toward, and explicable as intended to result in, the killing –
what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior
relationship and/or conduct with the victim from which the jury could reasonably infer a
‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or
(3), would in turn support an inference that the killing was the result of ‘a pre-existing
reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere
unconsidered or rash impulse hastily executed’ [Citation.]; (3) facts about the nature of
the killing from which the jury could infer that the manner of killing was so particular
and exacting that the defendant must have intentionally killed according to a
‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the
jury can reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will
show that this court sustains verdicts of first degree murder typically when there is
evidence of all three types and otherwise requires at least extremely strong evidence

9
of (1) or evidence of (2) in conjunction with either (1) or (3).” (People v. Anderson
(1968) 70 Cal.2d 15, 26-27.)
The Anderson categories “ ‘are descriptive, not normative.’ [Citation.] They are
simply an ‘aid [for] reviewing courts in assessing whether the evidence is supportive of
an inference that the killing was the result of preexisting reflection and weighing of
considerations rather than mere unconsidered or rash impulse.’ [Citation.]” (People v.
Cole (2004) 33 Cal.4th 1158, 1224.)
b. Discussion.
There was strong motive evidence in this case. Savala believed the victims were
from a rival gang. After some initial verbal animosity between Savala and Renteria due
to this rivalry, Toscano and Vargas tried to defuse the situation by telling them to calm
down. Vargas asked Savala to put aside their gang rivalry for the moment and behave in
a friendly manner. When Savala subsequently killed Vargas and Renteria, a reasonable
inference was that he had done so because he could not put aside their gang rivalry.
The manner of the killings also tended to show premeditation and deliberation.
Savala argues “the evidence . . . does not demonstrate an exacting manner of killing, only
multiple acts of violence, and this has never been held sufficient to show premeditation.”
We disagree. The evidence showed Savala ran down the sidewalk toward an
unsuspecting Renteria, pulled a gun from his pants, and shot Renteria in the chest and the
face from a fairly close range. When Vargas reacted to this shooting by screaming at
Savala and trying to flee, Savala ran after him, shot him several times and then, after
Vargas fell to the ground, walked up and shot him several more times. This does
demonstrate an exacting manner of killing; it was the pedestrian equivalent of a drive-by
shooting during which Savala fired nine times at the victims. (See People v. Silva (2001)
25 Cal.4th 345, 369 [“The manner of killing – multiple shotgun wounds inflicted on an
unarmed and defenseless victim who posed no threat to defendant – is entirely consistent
with a premeditated and deliberate murder.”]; People v. Herrera (1999) 70 Cal.App.4th
1456, 1464, disapproved on other grounds in People v. Mesa (2012) 54 Cal.4th 191

10
[dozen shots fired during drive-by shooting was evidence of premeditation and
deliberation].)
Savala argues the evidence showed only “a spontaneous, fast-occurring” explosion
of violence “evincing intent to kill or disable, but not a carefully weighed or deliberated
gang attack or a plan to kill.” However, “ ‘[t]he process of premeditation and
deliberation does not require any extended period of time. “The true test is not the
duration of time as much as it is the extent of the reflection. Thoughts may follow each
other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . ”
[Citations.]’ ” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “Premeditation can be
established in the context of a gang shooting even though the time between the sighting
of the victim and the actual shooting is very brief. [Citation.]” (People v. Sanchez
(2001) 26 Cal.4th 834, 849.)
There was even some evidence of planning because Flores told the police that, just
before Savala ran toward Renteria, he told Padilla to “get ready, get ready.” The jury
could have reasonably inferred this showed that Savala had formulated a plan to attack
the victims, warned his friend Padilla that he was about to take action, and then launched
his attack. (See, e.g., People v. Sanchez, supra, 26 Cal.4th at p. 849, italics added [“ ‘A
studied hatred and enmity, including a preplanned, purposeful resolve to shoot anyone in
a certain neighborhood wearing a certain color, evidences the most cold-blooded, most
calculated, most culpable, kind of premeditation and deliberation.’ ”].) That Savala then
fled the scene and disposed of the gun also tended to establish premeditation and
deliberation. (See, e.g., People v. Perez (1992) 2 Cal.4th 1117, 1128 [“the conduct of
defendant after the stabbing . . . would appear to be inconsistent with a state of mind that
would have produced a rash, impulsive killing”].)
Because the evidence supported an inference that Savala’s killing of the victims
“ ‘was the result of preexisting reflection and weighing of considerations rather than mere
unconsidered or rash impulse,’ ” there was sufficient evidence of premeditation and
deliberation. (People v. Cole, supra, 33 Cal.4th at p. 1224.) Hence, there was substantial
evidence to support Savala’s first degree murder convictions.

11
 2. Insufficient evidence to sustain the gang enhancements and the gang special
circumstance findings.
Savala contends the gang enhancements and the gang special circumstance
findings must be stricken because they were not supported by sufficient evidence. This
claim has merit.
Section 186.22, subdivision (b)(1), imposes additional punishment when a
defendant commits a felony “for the benefit of, at the direction of, or in association with
any criminal street gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members.” To establish that a group is a criminal street gang
within the meaning of this statute, the People must prove the group is an “ongoing
organization, association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more [enumerated]
criminal acts . . . , having a common name or common identifying sign or symbol, and
whose members individually or collectively engage in or have engaged in a pattern of
criminal gang activity.” (§ 186.22, subd. (f).) A “ ‘pattern of criminal gang activity’
means the commission of . . . two or more [enumerated] offenses, provided at least one of
these offenses occurred after the effective date of this chapter and the last of those
offenses occurred within three years after a prior offense, and the offenses were
committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).)
The criminal street gang special circumstance statute, section 190.2,
subdivision (a)(22), provides: “The penalty for a defendant who is found guilty of
murder in the first degree is death or imprisonment in the state prison for life without the
possibility of parole if one or more of the following special circumstances has been found
. . . to be true: . . . The defendant intentionally killed the victim while the defendant was
an active participant in a criminal street gang, as defined in subdivision (f) of Section
186.22, and the murder was carried out to further the activities of the criminal street
gang.”
Thus, both the criminal street gang enhancement and the criminal street gang
special circumstance require proof of a “pattern of criminal gang activity,” i.e., “the

12
commission of . . . two or more [enumerated] offenses, provided at least one of these
offenses occurred after the effective date of this chapter and the last of those offenses
occurred within three years after a prior offense, and the offenses were committed on
separate occasions, or by two or more persons.” (§ 186.22, subd. (e).)
In the case at bar, other than the charged offenses, the only evidence of an
enumerated predicate crime was an auto theft committed by an Orchard Street gang
member in January 2005, more than three years before the charged March 2008 murders.
The Attorney General does not dispute Savala’s contention that this 2005 offense was too
old to qualify as a predicate offense for establishing a pattern of gang activity, or that
proof of an existing “criminal street gang” depended solely on the currently charged
offenses. Savala argues the evidence failed to show “the offenses were committed on
separate occasions, or by two or more persons” (§ 186.22, subd. (e)), to which the
Attorney General replies, “To be sure, the murders were not committed by two or more
persons. They were, however, committed on separate occasions within the meaning of
Penal Code section 186.22, subdivision (e).”
The Attorney General asserts the “separate occasions” test was satisfied based on
In re Jose T. (1991) 230 Cal.App.3d 1455, 1462-1463, which reasoned: “Although
‘separate occasions’ is not defined in section 186.22, subdivision (e) for purposes of a
criminal street gang sentence enhancement, we may look to section 667.6,
subdivision (d), for guidance. Section 667.6, subdivision (d), provides for mandatory full
consecutive sentencing where certain sexual offenses involve the same victim on
‘separate occasions.’ ‘Separate occasions,’ in the sexual offense arena, is defined as
follows: ‘In determining whether crimes against a single victim were committed on
separate occasions . . . , the court shall consider whether, between the commission of one
sex crime and another, the defendant had a reasonable opportunity to reflect upon his or
her actions and nevertheless resumed sexually assaultive behavior.’ ” Based on this
reasoning, the Attorney General argues Savala’s “two murders were committed on
separate occasions” because “the evidence established that [he] premeditated both of the
killings. He therefore necessarily had an opportunity to reflect between shooting

13
Renteria in the face at close range, and chasing after Vargas to shoot him in the back and
then as he lay on the ground.”
However, as Savala points out, there are two very good reasons for rejecting the
Attorney General’s reliance on In re Jose T. First, the two crimes in that case had been
committed hours apart and in two entirely different locations.4 Here, on the other hand,
the two crimes were committed only seconds apart and within close proximity of each
other. Second, the basis for In re Jose T.’s holding was subsequently called into question
by our Supreme Court in People v. Deloza (1998) 18 Cal.4th 585, where the court
construed the words “not committed on the same occasion” that appear in the Three
Strikes statute.5
Deloza explained: “[I]t is not clear how helpful the term ‘separate occasions,’ as
defined in section 667.6, subdivision (d), is in interpreting the phrase ‘not committed on
the same occasion’ in [section 1170.12,] subdivision (a)(6) . . . . In addition to section
667.6, subdivision (d), at the time section 1170.12 was enacted, the Legislature had used
the term ‘separate occasions’ in numerous other statutes in the Penal and other codes. It
is apparent that these statutes do not consistently use the term ‘separate occasions’ to
refer to either the intent and objective of the defendant or the temporal proximity between
the relevant events. Thus, even if the electorate intended the term ‘not committed on the
same occasion’ to have the same meaning as the phrase ‘separate occasions,’ it is not
clear ‘separate occasions’ has a consistent meaning. In particular, it is not at all clear the
electorate was focusing on the meaning of that term as used in section 667.6,

4
As the court explained: “Here, Cooper was the victim of the robbery which took
place at approximately 1:30 a.m. The robbery was committed by Florencia Treca gang
members [in the parking lot of a food market] for purposes of the later drive-by shooting.
Avila was the victim of the attempted murder which took place more than eight hours
later [near a junior high school].” (In re Jose T., supra, 230 Cal.App.3d at p. 1463.)
5
Section 1170.12, subdivision (a)(6), provides: “If there is a current conviction for
more than one felony count not committed on the same occasion, and not arising from the
same set of operative facts, the court shall sentence the defendant consecutively on each
count pursuant to this section.” (Italics added.)

14
subdivision (d). Nothing in the ballot pamphlet or even the legislative history of the
Legislature’s version of the three strikes law supports such a conclusion.” (People v.
Deloza, supra, 18 Cal.4th at pp. 597-598, fn. omitted.) Specifically addressing the
“pattern of gang activity” language in section 186.22, and dismissing In re Jose T. with a
“but see” citation, Deloza said “section 667.6, subdivision (d)’s definition of [the term
‘separate occasions’] is of only marginal assistance . . . in construing the meaning of the
phrase ‘ “not committed on the same occasion.’ ” Here, the crimes were so closely
related in time and space, and committed against the same group of victims, that these
factors alone compel us to conclude they occurred on the ‘same occasion.’ ” (Id. at
p. 599.)
As a result, we agree with Savala there was insufficient evidence to establish the
“pattern of criminal activity” element of the gang statute,6 which in turn means there was
necessarily insufficient evidence to prove either the street gang enhancement allegations
under section 186.22 or the street gang special circumstance allegations under
section 190.2, subdivision (a)(22). We will, therefore, vacate those findings and their
ensuing sentences.
3. Voluntary manslaughter instructions were not required.
Savala contends the trial court erred in refusing to instruct the jury on either heat-
of-passion voluntary manslaughter or imperfect self-defense voluntary manslaughter as
lesser included offenses of first degree murder, and in refusing to admit evidence
supportive of those theories. There is no merit to this claim, which is impliedly premised
on an assertion the jury should have applied a “reasonable gang member” standard.

6
As a result of this conclusion, we need not address some of Savala’s other gang-
related claims: that the trial court erred in not defining for the jury the language “in
association with a criminal street gang,” that there was insufficient evidence of the
“primary activity” and “active participant in a criminal street gang” elements (§§ 186.22,
subd. (f), 190.2, subd. (a)(22)), and that the trial court imposed the wrong penalty in
connection with the gang enhancement findings.

15
 a. Legal principles.
A trial court must instruct on a lesser included offense if there is sufficient
evidence to support a finding by the jury that the lesser offense was committed rather
than the greater. (People v. Breverman (1998) 19 Cal.4th 142, 154-163.) The lesser
included offense evidence must be of some weight, however; the existence of “any
evidence, no matter how weak” will not justify instructions on lesser offenses. (Id. at
p. 162.)
“An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’
(§ 192(a)), and is thus voluntary manslaughter [citation], if the killer’s reason was
actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to
cause an ‘ “ordinary [person] of average disposition . . . to act rashly or without due
deliberation and reflection, and from this passion rather than from judgment.” ’ . . . .
[T]he passion aroused need not be anger or rage, but can be any ‘ “ ‘[v]iolent, intense,
high-wrought or enthusiastic emotion’ ” ’ [citation] other than revenge [citation].”
(People v. Breverman, supra, 19 Cal.4th at p. 163, italics added.) “The provocative
conduct by the victim may be physical or verbal, but the conduct must be sufficiently
provocative that it would cause an ordinary person of average disposition to act rashly or
without due deliberation and reflection.” (People v. Lee (1999) 20 Cal.4th 47, 59, italics
added.)
Thus, “[t]he heat of passion requirement for manslaughter has both an objective
and a subjective component. [Citation.] The defendant must actually, subjectively, kill
under the heat of passion. [Citation.] But the circumstances giving rise to the heat of
passion are also viewed objectively. As we explained long ago . . . ‘this heat of passion
must be such a passion as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances,’ because ‘no defendant may
set up his own standard of conduct and justify or excuse himself because in fact his
passions were aroused, unless further the jury believe that the facts and circumstances
were sufficient to arouse the passions of the ordinarily reasonable man.’ [Citation.]”
(People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)

16
 “Under the doctrine of imperfect self-defense, when the trier of fact finds that a
defendant killed another person because the defendant actually but unreasonably believed
he was in imminent danger of death or great bodily injury, the defendant is deemed to
have acted without malice and thus can be convicted of no crime greater than voluntary
manslaughter.” (In re Chrisitan S. (1994) 7 Cal.4th 768, 771.) “[T]he doctrine is narrow.
It requires without exception that the defendant must have had an actual belief in the
need for self-defense. . . . ‘ “[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.” ’. . . [¶] We also emphasize that
whether the defendant 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. . . . 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.’ [Citation.]” (Id. at p. 783.)
b. Discussion.
The verbal interaction between Savala and the victims prior to the shootings could
not have been an adequate provocation for heat-of-passion voluntary manslaughter. (See
People v. Manriquez (2005) 37 Cal.4th 547, 586 [calling defendant a “mother fucker”
and daring him to use his weapon, if he had one, “plainly were insufficient to cause an
average person to become so inflamed as to lose reason and judgment.”].) Savala is not
entitled to a different standard of reasonableness just because he belonged to a gang.
(See People v. Humphrey (1996) 13 Cal.4th 1073, 1087 [indicating disapproval of
hypothetical reasonable gang member standard]; People v. Lucas (1997) 55 Cal.App.4th
721, 740 [receiving hard looks or so-called “mad-dogging” does not constitute reasonable
provocation to shoot someone].)
In addition, Savala was not entitled to an imperfect self-defense instruction
because there was no substantial evidence he “actually . . . believed he was in imminent
danger of death or great bodily injury.” (In re Christian S. (1994) 7 Cal.4th 768, 771; see
People v. Minifie (1996) 13 Cal.4th 1055, 1065 [defendant claiming self-defense must

17
“ ‘ “prove his own frame of mind” ’ ”].) Savala did not testify to his own state of mind.
The evidence showed that, although Savala initially argued with one or both of the
newcomers, others who were present urged the disputants to be friendly despite their
gang rivalry. Savala was the only one who ignored this well-meaning attempt to avoid
trouble. In these circumstances, there was no evidence he believed he was in imminent
danger.
Notwithstanding Savala’s arguments to the contrary, evidence showing Renteria
had been intoxicated or on drugs or that Savala had once been the victim of a shooting
would not have advanced either theory. Savala asserts Renteria’s intoxication and drug
use constituted “important objective circumstantial corroboration supporting the key
defense claim the decedents were aggressors.” However, what mattered was the
decedents’ actual behavior, not whether that behavior might have been affected by drugs
or alcohol, and the evidence showed it was only Savala whose behavior escalated from
verbal hostility to physical violence.
The mere fact that someone had shot and wounded Savala sometime in the past
did not provide substantial evidence he believed that he was now in imminent peril,
particularly as there was no evidence connecting his victims to the earlier shooting or
suggesting that his victims were armed. Savala argues “the fear of explosive violence
was a real concern on appellant’s part, as shown by what happened here.” However, that
is like the proverbial parent-killer requesting mercy because he is an orphan. “What
happened here” – so far as the trial evidence showed – was that Savala refused to
abandon his gang animosity for even a few minutes and made the decision to eliminate
his enemies.
The trial court did not err in finding the evidence did not warrant jury instructions
on either heat-of-passion voluntary manslaughter or imperfect self-defense voluntary
manslaughter.
4. The instruction regarding Savala’s flight was proper.
Savala contends the trial court erred in instructing the jury that evidence of flight
could be interpreted as a manifestation of guilt. We disagree.

18
 a. Legal principles.
The jury was instructed with CALJIC No. 2.52 as follows: “The flight of a person
immediately after the commission of a crime, or after he is accused of a crime, is not
sufficient in itself to establish his guilt. It is a fact which, if proved, may be considered
by you in the light of all the other proved facts in deciding whether a defendant is guilty
or not guilty. The weight to which this circumstance is entitled is a matter for you to
decide.” Section 1127c requires a trial court to give this instruction “[i]n any criminal
trial or proceeding where evidence of flight of a defendant is relied upon as tending to
show guilt.”
Regarding the usual group of consciousness of guilt instructions – which includes
CALJIC No. 2.06 (efforts to suppress evidence), CALJIC No. 2.52 (flight after a crime)
and CALJIC No. 2.03 (telling of a falsehood) – People v. Jurado (2006) 38 Cal.4th 72,
explained: “We have repeatedly rejected contentions that these standard jury instructions
on consciousness of guilt were impermissibly argumentative or permitted the jury to draw
irrational inferences about a defendant’s mental state during the commission of the
charged offenses. [Citations.]” (Id. at p. 125.)
“In general, a flight instruction ‘is proper where the evidence shows that the
defendant departed the crime scene under circumstances suggesting that his movement
was motivated by a consciousness of guilt.’ [Citation.] ‘ “[F]light requires neither the
physical act of running nor the reaching of a far-away haven. [Citation.] Flight
manifestly does require, however, a purpose to avoid being observed or arrested.” ’
[Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) “A flight instruction is
proper whenever evidence of the circumstances of defendant’s departure from the crime
scene . . . logically permits an inference that his movement was motivated by guilty
knowledge. [Citations.]” (People v. Turner (1990) 50 Cal.3d 668, 694.)
b. Discussion.
Savala argues this instruction was “irrational and unfair as an inference of guilt of
murder versus other separate crimes (notably unlawful possession of a firearm), much
less the degree of murder. Any flight activity by appellant said nothing about the nature

19
or degree of his guilt or about which crime(s) he was fleeing from.” Savala suggests that
he “could have fled simply for being present with a gun.”
Both of these arguments have already been rejected by our Supreme Court. As for
Savala’s “degree of the crime” argument: “Contrary to defendant’s claims, the
instructions do not suggest that evidence of a defendant’s consciousness of guilt serves to
support an inference of the existence of a particular mental state or degree of culpability.
[Citation.] ‘[W]e have repeatedly rejected the argument that instructions on
consciousness of guilt, including instructions regarding the defendant’s flight following
the crime, permit the jury to draw impermissible inferences about the defendant’s mental
state, or are otherwise inappropriate where mental state, not identity, is the principal
disputed issue.’ [Citation.]” (People v. Martinez (2009) 47 Cal.4th 399, 450.)
Further, our Supreme Court has repeatedly held that it is up to the jury to sort out
the reason why a defendant fled. (See People v. Mendoza (2000) 24 Cal.4th 130, 180
[where defendant had been charged with four different crimes arising out of his encounter
with the victim – rape, robbery, arson and murder – “[i]t is for the jury to determine to
which offenses, if any, the inference should apply”]; People v. Perry (1972) 7 Cal.3d
756, 772, disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 28
[rejecting claim defendant may have been fleeing for reasons other than the charged
murder (e.g., arrest warrant, drugs hidden in car trunk, parole violation) because “it is the
jury’s function to determine which of several possible reasons actually explains why a
defendant fled”]; People v. Armstrong (1896) 114 Cal. 570, 574 [“True, there was
evidence to show that before the theft of the horse the defendant was, as he put it, ‘taking
precautions to avoid running into an officer,’ being apprehensive of arrest for some
breach of the peace, and his flight might have been ascribed to such apprehension; but
this was a circumstance for the jury; they were not bound to attribute the consciousness
of guilt indicated by flight to one disposing cause rather than the other.”].)
The trial court did not err in giving a flight instruction.

20
 5. It was not error to instruct with CALJIC No. 2.21.2.
Savala contends the trial court erred in instructing the jury with
CALJIC No. 2.21.2 (witness willfully false) because it lowered the prosecution’s burden
of proof. As Savala concedes, however, our Supreme Court has already rejected this
contention.
CALJIC No. 2.21.2 provides: “A witness, who is willfully false in one material
part of his or her testimony, is to be distrusted in others. You may reject the whole
testimony of a witness who willfully has testified falsely as to a material point, unless,
from all the evidence, you believe the probability of truth favors his or her testimony in
other particulars.”
Our Supreme Court has repeatedly rejected the claim that the “probability of truth”
language in this instruction “impermissibly lightened the prosecution’s burden of proof,
because it allowed the jury to assess prosecution witnesses by seeking only a probability
of truth in their testimony . . . .” (People v. Guerra (2006) 37 Cal.4th 1067, 1139,
disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151; see also
People v. Nakahara (2003) 30 Cal.4th 705, 714 [“Defendant contends [CALJIC
No. 2.21.2] ‘allowed the jury to assess prosecution witnesses by seeking only a
probability of truth in their testimony.’ But as we have held, the targeted instruction says
no such thing.”].)
The trial court did not err in instructing the jury with CALJIC No. 2.21.2.
6. The reasonable doubt instruction was proper.
Savala contends California’s standard instruction defining the “beyond a
reasonable doubt” standard was constitutionally defective because of its reliance on the
phrase “abiding conviction.” There is no merit to this claim.
Savala’s jury was instructed with CALJIC No. 2.90: “ ‘Reasonable doubt’ is
defined as follows: [¶] It is not a mere possible doubt, because everything relating to
human affairs is open to some possible or imaginary doubt. It is that state of the case,
which, after the entire comparison and consideration of all the evidence, leaves the minds

21
of the jurors in that condition that they cannot say they feel an abiding conviction of the
truth of the charge.”
Attacks on the “abiding conviction” language have been repeatedly rejected.
“[D]efendant’s assertions on the deficiencies of the phrase ‘abiding conviction’ must give
way to the great weight of legal authority approving that very language.” (People v.
Stone (2008) 160 Cal.App.4th 323, 334; accord, People v. Zepeda (2008)
167 Cal.App.4th 25, 31, fn. 4 [“Our state Supreme Court and the Courts of Appeal in
every appellate district consistently rejected defendant’s argument as it applied to the
‘abiding conviction’ phrase in CALJIC No. 2.90.”]; People v. Carillo (2008)
163 Cal.App.4th 1028, 1039 [rejecting objection to “abiding conviction” language
because “the propriety of the instruction . . . has been upheld many times”]; see also
People v. Lucas (2014) 60 Cal.4th 153, 297 [“we have repeatedly held that the standard
CALJIC jury instruction defining reasonable doubt is correct and adequate”].)
The trial court did not err in instructing the jury with CALJIC No. 2.90.
7. The instruction on expert testimony was proper.
Savala contends the trial court erred in instructing the jury with the portion of
CALJIC No. 2.80 (expert testimony) that discussed how to evaluate the evidentiary basis
of expert testimony. There is no merit to this claim.
Savala’s jury was instructed: “An expert witness is permitted to consider the
statements made to the witness or a third person that have not been made under oath in
court. [¶] Statements considered by an expert witness which were made to the witness or
a third person do not prove what was said was true. The truth of those statements may
come from other evidence. You should consider the failure to prove in court that it was
made or is true in determining what weight to give to the opinion of the expert.” Savala
argues this language improperly allowed the jury to consider as evidence information that
the gang expert relied on in concluding Savala was a gang member. Savala asserts this
violated his confrontation clause rights under Crawford v. Washington (2004) 541 U.S.
36 [124 S.Ct. 1354] (Crawford).

22
 “In Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354] . . . , the United
States Supreme Court announced a new standard for determining when the confrontation
clause of the Sixth Amendment prohibits the use of hearsay evidence – i.e., an out-of-
court statement offered for its truth – against a criminal defendant. Crawford held that
this clause protects an accused against hearsay uttered by one who spoke as a [witness
giving testimony] [citation] if the declarant neither takes the stand at trial nor was
otherwise available for cross-examination by the accused.” (People v. Cage (2007)
40 Cal.4th 965, 969.) Crawford held that “ ‘[w]here testimonial statements are at issue,
the only indicium of reliability sufficient to satisfy constitutional demands is the one the
Constitution actually prescribes: confrontation.’ [Citation.]” (People v. Cervantes
(2004) 118 Cal.App.4th 162, 172.) “Crawford recognized that if the statement in issue is
nontestimonial, the rules of evidence, including hearsay rules, apply. Crawford stated:
‘Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’
design to afford the States flexibility in their development of hearsay law . . . . ’
[Citation.] Thus, state courts may consider ‘reliability factors beyond prior opportunity
for cross-examination when the hearsay statement at issue was not testimonial.
[Citation.]’ [Citation.]” (Id. at p. 173.)
According to our Supreme Court, Crawford “adopted this general rule: The
prosecution may not use ‘[t]estimonial statements’ of a witness who does not appear at
trial, unless the witness is unavailable to testify and the defendant had a prior opportunity
for cross-examination. [Citation.]” (People v. Dungo (2012) 55 Cal.4th 608, 616.)
“Although the high court has not agreed on a definition of ‘testimonial,’ testimonial out-
of-court statements have two critical components. First, to be testimonial the statement
must be made with some degree of formality or solemnity. Second, the statement is
testimonial only if its primary purpose pertains in some fashion to a criminal
prosecution.” (Id. at p. 619.)

23
 In the gang context, expert witnesses often gather the information they rely on
from non-testimonial sources.7 As explained in People v. Valadez (2013)
220 Cal.App.4th 16, 35-36: “[U]nder any definition of ‘testimonial’ the general
background information [the expert] obtained from gang members, other officers, and
written materials on the history of the El Sereno and Lowell Street gangs plainly does not
qualify. [The expert] testified he simply talked to experienced officers, read materials,
and discussed the gangs’ history in casual, consensual encounters with gang members in
order to learn more about the history of the gangs, which gang expert witnesses almost
surely must do to become qualified as experts. . . . [¶] Further, nothing in the
circumstances of [the expert’s] interactions with gang members and other officers
objectively indicates the primary purpose of [the] questioning was to target appellants or
any other individuals or crimes for investigation or to establish past facts for a later
criminal prosecution. . . . Day in and day out such information would be useful to the
police as part of their general community policing responsibilities quite separate from any
use in some unspecified criminal prosecution. Further, nothing in the consensual
encounters with gang members or officers suggests they might have reasonably
understood [the expert’s] primary purpose was to use their statements in a later
prosecution.” Savala has not identified any relevant out-of-court statements that were
elicited in circumstances different from those described in Valadez.
Moreover, confrontation clause error is reviewable for harmless error under the
Chapman8 standard of harmless beyond a reasonable doubt. (People v. Mitchell (2005)
131 Cal.App.4th 1210, 1225; People v. Martinez (2003) 113 Cal.App.4th 400, 410;
People v. Schmaus (2003) 109 Cal.App.4th 846, 859.) Savala could not have been
prejudiced because, entirely apart from the gang expert’s testimony, the jury heard from

7
Our Supreme Court has granted review in People v. Sanchez (2014)
223 Cal.App.4th 1 (review granted May 14, 2014, S216681) in order to decide if, under
Crawford, a defendant’s Sixth Amendment right to confrontation was violated by a gang
expert’s reliance on testimonial hearsay.
8
Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2. 705].

24
two other witnesses who knew that Savala was a gang member, i.e., Flores and Toscano.
As for other aspects of the gang expert’s testimony that may have relied on hearsay (e.g.,
the type of activities engaged in by the Orchard Street gang), they are irrelevant because
we have already determined there was insufficient evidence to sustain either the gang
enhancement or the gang special circumstance finding.
The trial court did not err in instructing the jury with CALJIC No. 2.80.
8. Evidence of prior inconsistent statements did not violate Savala’s right to
confrontation.
Savala contends the trial court violated his confrontation clause rights under
Crawford in admitting the prior inconsistent statements of two witnesses (Gutierrez and
Flores) who claimed memory lapses when they took the stand at Savala’s trial. We
disagree.
As Savala acknowledges, Crawford is inapplicable because Gutierrez and Flores
testified at trial and were subject to cross-examination. (See United States v. Owens
(1988) 484 U.S. 554 [108 S.Ct. 838] [even loss of memory does not render witness
unavailable for Confrontation Clause purposes]; People v. Cowan (2010) 50 Cal.4th 401,
468 [Owens concluded “that ‘when a hearsay declarant is present at trial and subject to
unrestricted cross-examination,’ [the] ‘traditional protections of the oath, cross-
examination, and opportunity for the jury to observe the witness’[s] demeanor satisfy the
constitutional requirements,’ notwithstanding the witness’s claimed memory loss about
the facts related in the hearsay statement” and “[n]othing in Crawford casts doubt on the
continuing vitality of Owens”].)
As for Savala’s complaint that the jury should have been instructed “they had to
find that a witness’s claim of lack of recollection was feigned or deliberate in order to be
considered inconsistent with the former statements,” this is the kind of preliminary fact
that is to be determined by the trial court under Evidence Code section 405, not the jury.
(See People v. Tewksbury (1976) 15 Cal.3d 953, 966 [when deciding if collateral factual
matters bring statement within a hearsay exception, trial court “finds the existence or
nonexistence of the preliminary fact”].) “The initial decision of whether the required

25
facts exist to permit admission of statements under an established hearsay exception is
vested in the trial court’s discretion. Its ruling will not be disturbed unless those facts are
not supported by a preponderance of the evidence.” (People v. Rios (1985) 163
Cal.App.3d 852, 863.)9
The trial court did not err in admitting the prior inconsistent statement evidence.
9. No cumulative error.
Savala contends his convictions must be reversed for cumulative error. We have
reversed both the gang enhancement and the gang special circumstance findings for legal
error. Other than that, we have found no errors and, therefore, the claim of cumulative
error fails. (See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998)
18 Cal.4th 297, 335.)

9
Rios applied the Tewksbury rule to the admission of prior inconsistent statements:
“Under this exception to the hearsay rule, a court may allow earlier statements of a
witness in evidence to prove the truth of their content where they are inconsistent with
matters to which the witness testifies at trial. The inconsistency may either be express or
implied, and will be deemed implied where the court finds a witness falsely claiming
failure to remember facts in order to deliberately avoid testifying as to those facts.
[Citations.]” (People v. Rios, supra, 163 Cal.App.3d at pp. 863-864, fn. omitted.) Here,
the record demonstrates there was ample reason to believe that Flores’s and Gutierrez’s
claims to be suffering from memory loss were false. Flores’s initial claims of complete
memory loss prompted this exchange when he was asked how he felt about testifying:
“A. I’m not testifying. [¶] Q. You don’t want to testify? [¶] A. Fuck, no.” Although
Gutierrez answered some questions, she allegedly suffered memory loss when asked
about crucial details. Gutierrez admitted the authorities had forced her to attend the trial
and she acknowledged she was “afraid because of what [she] saw that day.”

26
 DISPOSITION
Savala’s gang enhancement and gang-murder special-circumstance findings are
vacated. The stayed 10-year gang enhancement terms are vacated. As modified, the
judgment is affirmed. Savala’s consecutive life-without-possibility-of-parole terms are
independently grounded in the multiple-murder special-circumstance findings and are,
therefore, unaffected by the reversal of the gang-murder special-circumstance findings.
The trial court is directed to prepare and forward to the Department of Corrections and
Rehabilitation an amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

KITCHING, J.

EGERTON, J.*

*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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