People v. Lee

Filed 5/1/20 Certified for Publication 5/22/20 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B297928

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA079332)
v.

KENNY INKWON LEE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and David W. Williams,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
 Defendant and appellant Kenny InKwon Lee appeals from
the trial court’s denial of his petition under Penal Code1
section 1170.95. That statutory section permits defendants
convicted of murder under the felony murder rule or natural and
probable consequences doctrine to petition for resentencing based
on changes to the Penal Code enacted under Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015).
Our opinion from Lee’s original appeal in 1996 indicates he
was not convicted under either of these two theories, but instead
was convicted under the provocative act doctrine. Provocative act
murder requires proof of malice, which distinguishes it from
felony murder and natural and probable consequences murder.
Lee therefore is not entitled to resentencing under section
1170.95.
Accordingly, we affirm.

FACTUAL BACKGROUND
We quote the summary of the facts in our 1996 opinion
(1996 opinion) addressing Lee’s appeal from his conviction.
(People v. Lee (May 28, 1996, B088132 [nonpub. opn.])2
“Three men arrived at a shopping center in a red sports car.
While the driver (Chul Woong Choi) waited in the car, Lee and
Joo Hyung Woo got out and went into a video store. Outside, a
suspicious security guard (Agustin Nolasco) started to write down

1 Undesignated statutory citations are to the Penal Code.
2 We granted Lee’s request to take judicial notice of our
1996 opinion. Apart from that opinion, the record before us
does not contain any of the trial or appellate record pertaining to
Lee’s original conviction.

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the sports car’s license number. Inside, Lee and Woo pointed
guns at the video store’s two employees, dragged them to the
back of the store, beat them, and took their money and personal
belongings. Lee and Woo then ransacked the store and took
money from the cash register.” (People v. Lee, supra, B088132,
at p. *2.)
“Impatient, Choi (who was also carrying a gun) got out of
the sports car, tried to open the door to the video store, and yelled
to Lee and Woo, ‘Hey, let’s go.’ As Lee and Woo ran out of the
store, Nolasco (the guard) stepped out of his car and yelled (in
English), ‘What’s going on?’ In response, Lee and Choi
pointed their guns at Nolasco and Nolasco, in turn, ducked down
behind his open car door and grabbed his gun from his car. Lee
and Woo got into the sports car and when Nolasco raised his head
to see what was going on, Choi (then halfway into the driver’s
seat of the sports car) fired a shot at Nolasco. Nolasco shot back
twice, hitting Choi. Lee (who was sitting next to Choi) stepped on
the accelerator and, while shooting at Nolasco, drove slowly out of
the parking lot.” (People v. Lee, supra, B088132, at p. *2.)
“Nolasco ran into the video store, made sure everyone was
all right, then went back outside where he found Choi’s dead
body face down on the ground where he had been dumped by Lee
and Woo.” (People v. Lee, supra, B088132, at p. *3.)

PROCEDURAL BACKGROUND

1. Trial, conviction, and appeal
Lee and Woo “both were charged with Choi’s murder, three
counts of robbery, the attempted murder of Nolasco, and a variety
of firearm enhancements.” (People v. Lee, supra, B088132,
at p. *3.) Woo was granted immunity to testify against Lee,

3
although he ultimately was not called as a witness. (Ibid.) After
a jury trial, Lee was convicted of first degree murder, attempted
murder, two counts of robbery, and one count of receiving stolen
property, with enhancements. (Id. at pp. *2–*3.)
Lee’s conviction for murder was based on the “provocative
act” doctrine. (People v. Lee, supra, B088132, at p. *3.)
Appealing from that conviction, Lee argued there was insufficient
evidence to show that Lee committed a provocative act that was
the proximate cause of Choi’s death. (Ibid.) Lee argued the
evidence instead showed that it was Choi pointing his gun at
Nolasco that led to Nolasco shooting Choi. (Id. at p. *4.)
We rejected this argument, concluding that Nolasco’s
testimony at trial made clear that it was both Lee’s and Choi’s
pointing their guns at Nolasco that caused him to reach for his
own gun and shoot back, killing Choi. (People v. Lee, supra,
B088132, at p. *5.) Thus, there was sufficient evidence that Lee’s
conduct was a “substantial factor in causing the shooting, and
the fact that Choi’s own conduct was also a contributing factor
does not relieve Lee of criminal responsibility for this killing.”
(Ibid.)
We further held that the jury was properly instructed “that
a murder ‘which occurs during the commission or attempt to
commit the crime of robbery, when there was in the mind of the
perpetrators of such crime the specific intent to commit robbery,
is murder of the first degree,’ ” citing former section 189. (People
v. Lee, supra, B088132, at p. *6.) Lee argued that “because the
felony-murder rule does not apply to provocative-act killings for
the purpose of proving malice aforethought, the felony-murder
rule ought not to have anything to do with determining the
degree of a provocative-act murder.” (Id. at pp. *6–*7.) We held

4
that Lee’s argument was contrary to established law under
People v. Gilbert (1965) 63 Cal.2d 690, 705 (Gilbert), reversed on
other grounds by Gilbert v. California (1967) 388 U.S. 263.
After rejecting Lee’s other claims of error, we affirmed the
judgment. (People v. Lee, supra, B088132, at pp. *7–*8.)

2. Petition for resentencing
In February 2019, Lee filed a petition for resentencing
pursuant to section 1170.95. Lee checked boxes on the petition
form indicating that he was convicted of first or second degree
murder under the felony murder rule or the natural and probable
consequences doctrine, and could not now be convicted of murder
because of changes to sections 188 and 189 effective January 1,
2019. As to his specific conviction, Lee checked the box indicating
he was convicted for first degree felony murder; he did not check
the box indicating a conviction for second degree murder under
the natural and probable consequences or second degree felony
murder doctrines.
The trial court denied the petition without Lee present or
represented by counsel. The trial court found that Lee’s jury was
instructed on provocative act murder, conviction for which
requires a finding of “at least implied malice.” The trial court
further found that Lee’s jury was instructed that it could not
convict Lee of attempted murder unless he had express malice.3

3 The record before us does not contain the jury
instructions for Lee’s trial, and our 1996 opinion does not discuss
any instructions for attempted murder. The trial court may have
reviewed additional documents not in our current appellate
record. Because our 1996 opinion provides sufficient information
to resolve this appeal, any discrepancy between what the

5
The trial court concluded that in regard to Lee’s murder
conviction, “defendant had implied malice,” and therefore was
ineligible for relief under section 1170.95.
Lee timely appealed.

DISCUSSION
Lee argues his petition stated a prima facie basis for relief
under section 1170.95, and the trial court erred in concluding
otherwise. We disagree. We begin with a discussion of
Senate Bill No. 1437, the legislation enacting section 1170.95.
(Stats. 2018, ch. 1015, § 4.)

A. Senate Bill No. 1437
As a general matter, a defendant may not be convicted of
murder absent proof that he or she unlawfully killed a human
being “with malice aforethought,” either express or implied.
(§§ 187, subd. (a), 188, subd. (a).) Prior to the enactment of
Senate Bill No. 1437, however, both the felony murder rule and
the natural and probable consequences doctrine provided theories
under which a defendant could be found guilty of murder without
proof of malice.
Under the felony murder rule, a defendant could be
convicted of murder “ ‘ “when the defendant or an accomplice
kill[ed] someone during the commission, or attempted
commission, of an inherently dangerous felony . . . .” ’ ” (People v.
Powell (2018) 5 Cal.5th 921, 942 (Powell).) “ ‘ “If the felony is

trial court reviewed and what is before us on appeal is
immaterial.

6
listed in section 189, the murder is of the first degree;[4] if not,
the murder is of the second degree.” ’ ” (Ibid.) Prior to the
enactment of Senate Bill No. 1437, “[f]elony-murder liability d[id]
not require an intent to kill, or even implied malice, but merely
an intent to commit the underlying felony.” (People v. Gonzalez
(2012) 54 Cal.4th 643, 654 (Gonzalez).)
Similarly, under the natural and probable consequences
doctrine, “a person who knowingly aided and abetted a crime, the
natural and probable consequence of which was murder or
attempted murder, could be convicted of not only the target crime
but also of the resulting murder or attempted murder.
[Citations.] ‘This was true irrespective of whether the defendant
harbored malice aforethought. Liability was imposed “ ‘for the
criminal harms [the defendant] . . . naturally, probably, and
foreseeably put in motion.’ ” ’ ” (People v. Munoz (2019)
39 Cal.App.5th 738, 749, review granted on other grounds
Nov. 26, 2019, S258234.) The natural and probable consequences
doctrine “is not an implied malice theory; the mens rea of the
aider and abettor with respect to the [murder or attempted
murder], actual or imputed, is irrelevant.” (People v. Lopez
(2019) 38 Cal.App.5th 1087, 1102 (Lopez), review granted on
other grounds Nov. 13, 2019, S258175.)
The Legislature enacted Senate Bill No. 1437 “to amend
the felony murder rule and the natural and probable

4 Section 189, subdivision (a), reads, in relevant part, “All
murder . . . that is committed in the perpetration of, or attempt to
perpetrate, arson, rape, carjacking, robbery, burglary, mayhem,
kidnapping, train wrecking, or any act punishable under
Section 206, 286, 287, 288, or 289, or former Section 288a, . . . is
murder of the first degree.”

7
consequences doctrine, as it relates to murder,” such that “[a]
person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018,
ch. 1015, § 1(f), (g).)
The bill significantly limited the felony murder rule by
adding subdivision (e) to section 189. (Stats. 2018, ch. 1015, § 3.)
That subdivision provides that “[a] participant in the
perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was
a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.”5
Senate Bill No. 1437 also eliminated liability for murder
under the natural and probable consequences doctrine. (Lopez,
supra, 38 Cal.App.5th at p. 1092.) It did so by amending
section 188, which now provides, “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder,
a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018,

5 “Subdivision (e) does not apply to a defendant when the
victim is a peace officer who was killed while in the course of the
peace officer’s duties, where the defendant knew or reasonably
should have known that the victim was a peace officer engaged in
the performance of the peace officer’s duties.” (§ 189, subd. (f).)

8
ch. 1015, § 2; see Lopez, at pp. 1102–1103.) In short, after the
enactment of Senate Bill No. 1437, a defendant cannot be
convicted of murder absent a showing of malice, with the
exception of felony murder as limited by section 189,
subdivision (e). (See Lopez, at p. 1102.)

B. Section 1170.95
Section 1170.95 permits “[a] person convicted of felony
murder or murder under a natural and probable consequences
theory” to petition the trial court for resentencing if, among other
things, “[t]he petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189” effected
under Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).) After
confirming that the petition contains the statutorily required
information, “[t]he [trial] court shall review the petition and
determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section.” (Id.,
subd. (c); see id., subd. (b)(2) [court may deny petition without
prejudice if statutorily required information is missing from
petition].) If the trial court determines the petitioner has made
an adequate prima facie showing, the court must appoint counsel
for the petitioner and conduct further proceedings as set forth in
the statute. (§ 1170.95, subds. (c)–(e); People v. Verdugo (2020)
44 Cal.App.5th 320, 332–333 (Verdugo), review granted Mar. 18,
2020, S260493; People v. Lewis (2020) 43 Cal.App.5th 1128, 1140
(Lewis), review granted Mar. 18, 2020, S260598.)
This division and others have held that in determining
whether a petitioner has made a prima facie showing for
purposes of section 1170.95, the trial court may review the record
of conviction, including the opinion from the petitioner’s original
appeal from his or her conviction. (Lewis, supra, 43 Cal.App.5th

9
at pp. 1137–1138; accord, Verdugo, supra, 44 Cal.App.5th at pp.
329–330, 333; see People v. Cornelius (2020) 44 Cal.App.5th 54,
57–58 [affirming denial of section 1170.95 petition when “the
verdict, the trial transcript and the prior appeal” indicated
petitioner could not make a prima facie showing for relief]
(Cornelius), review granted Mar. 18, 2020, S260410.)
We acknowledge that the Supreme Court has granted
review in Lewis to decide (1) whether the trial court properly may
consider the record of conviction when ruling on a petitioner’s
prima facie showing under section 1170.95, and (2) when in the
process outlined under that section the right to appointed counsel
arises. (See Lewis, supra, S260598.) The Supreme Court also
has granted review in Verdugo and Cornelius, deferring further
action pending disposition of the issues in Lewis. (See Verdugo,
supra, S260493; Cornelius, supra, S260410.)
Lee, however, gives us no reason not to follow Lewis. Lee
does not cite or discuss Lewis, Verdugo, or Cornelius in his
appellate briefing, although the Attorney General invoked those
cases in the respondent’s brief. Lee himself requested we take
judicial notice of our 1996 opinion, which he cites in his briefing,
thus acknowledging that the record of conviction properly may be
considered when evaluating the adequacy of his prima facie
showing. Lee quotes section 1170.95’s requirement that the trial
court appoint counsel, but makes no argument as to whether that
appointment must occur before the trial court assesses the
petitioner’s prima facie showing. Pending further guidance from
the Supreme Court, therefore, we apply our holding in Lewis.

10
C. Lee is not eligible for resentencing under section
1170.95 for provocative act murder
Having laid out the applicable legal principles underlying
section 1170.95, we review Lee’s record of conviction—in this case
our 1996 opinion—to determine if the trial court correctly
concluded that Lee is ineligible for relief under section 1170.95.
We hold that the trial court reached the correct conclusion.
Lee was not convicted of murder under either a felony murder or
natural and probable consequences theory, but under the
provocative act doctrine, which permits a defendant to be “held
liable for the killing of an accomplice by a third party.” (People v.
Mejia (2012) 211 Cal.App.4th 586, 602 (Mejia).)
“The provocative act doctrine is to be distinguished from
the felony-murder rule.” (Gonzalez, supra, 54 Cal.4th at p. 654.)
The felony murder rule applies to killings “committed in the
perpetration of, or attempt to perpetrate” certain crimes. (§ 189,
subd. (a).) “When a killing is not committed by [the defendant] or
by his accomplice but by his victim,” however, “malice
aforethought is not attributable to the [defendant], for the killing
is not committed by him in the perpetration or attempt to
perpetrate” the underlying felony. (People v. Washington (1965)
62 Cal.2d 777, 781 (Washington).) Thus, the felony murder rule
cannot support a murder conviction when an accomplice is killed
by a third party rather than by the defendant or another
accomplice. (Gonzalez, at pp. 654–655; accord, Washington,
at p. 781.)
Under such circumstances, the defendant may nonetheless
be convicted of murder under the provocative act doctrine.
“[W]hen the perpetrator of a crime maliciously commits an act
that is likely to result in death, and the victim kills in reasonable

11
response to that act, the perpetrator is guilty of murder.
[Citations.] ‘In such a case, the killing is attributable, not merely
to the commission of a felony, but to the intentional act of the
defendant or his accomplice committed with conscious disregard
for life.’ ” (Gonzalez, supra, 54 Cal.4th at p. 655.) “The classic
provocative act scenario occurs when a perpetrator of the
underlying crime instigates a gun battle, usually by firing first,
and a police officer, or victim of the underlying crime, responds
with privileged lethal force by returning fire and kills the
perpetrator’s accomplice . . . .” (Mejia, supra, 211 Cal.App.4th
at pp. 602–603.)
Unlike felony murder or murder under the natural and
probable consequences doctrine, “[a] murder conviction under the
provocative act doctrine . . . requires proof that the defendant
personally harbored the mental state of malice, and either the
defendant or an accomplice intentionally committed a provocative
act that proximately caused” the death of another accomplice.6
(Gonzalez, supra, 54 Cal.4th at p. 655; see Mejia, supra,
211 Cal.App.4th at p. 603 [“With respect to the mental element of
provocative act murder, a defendant cannot be vicariously liable;
he must personally possess the requisite mental state of malice
aforethought when he either causes the death through his
provocative act or aids and abets in the underlying crime the

6 The provocative act doctrine does not apply when the sole
provocateur is the deceased accomplice. (People v. Hunter (2017)
15 Cal.App.5th 163, 171; see Mejia, supra, 211 Cal.App.4th at
p. 603 [provocative act must be performed by defendant or a
surviving accomplice].)

12
provocateur who causes the death,” italics omitted].)7 The malice
requirement for provocative act murder was well established in
1996 when we affirmed Lee’s conviction. (See, e.g., People v. Mai
(1994) 22 Cal.App.4th 117, 124 [“an element of the provocative
act doctrine is implied malice”], disapproved of on other grounds
by People v. Nguyen (2000) 24 Cal.4th 756, 757; see also Gilbert,
supra, 63 Cal.2d at pp. 703–704 [defendant’s murder conviction
based on police officer’s killing of accomplice required proof of
malice].)
Lee therefore cannot show that he “could not be convicted
of first or second degree murder because of changes to
Section 188 or 189” as required for relief under section 1170.95,
subdivision (a)(3). Section 188, as amended, establishes that “in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought.” Because Lee was convicted of
provocative act murder, the jury necessarily found he acted with
malice aforethought. Section 189, as amended, changed the
felony murder rule, but Lee was not convicted under that rule.

7 Mejia notes that provocative act murder has both a
physical and a mental element. (Mejia, supra, 211 Cal.App.4th
at p. 603.) As discussed, the mental element is malice
aforethought. (Ibid.) The physical element is the provocative act
itself, defined in Mejia as “an act, the natural and probable
consequence of which is the use of deadly forced by a third party.”
(Ibid.) Although there is no vicarious liability as to the mental
element, the defendant may be vicariously liable for the physical
element: “[A] participant in the underlying crime who does not
actually commit a provocative act himself may nevertheless be
vicariously liable for the killing caused by his provocateur
accomplice based upon having aided and abetted commission of
the underlying crime.” (Ibid.)

13
 Although not entirely clear, Lee appears to dispute that he
was convicted under the provocative act doctrine. He claims that
our 1996 opinion establishes that he “did not initiate a gun
battle,” and it was Choi’s shooting at the security guard that led
to Choi’s death. Lee claims he was instead convicted “as an aider
an[d] abettor based on Choi’s action during their mutual
participation in a felony listed in section 189.”
Lee misreads our 1996 opinion, which expressly stated he
was convicted under the provocative act doctrine, and that it
was both Choi’s and Lee’s conduct that caused Nolasco to fire
his weapon and kill Choi. (People v. Lee, supra, B088132,
at pp. *3–*5.) There is no indication that he was convicted under
a felony murder theory, nor could he have been given that
Choi was killed by a third party, Nolasco, not by Lee or the
other accomplice, Woo. (See Gonzalez, supra, 54 Cal.4th
at pp. 654–655.)
To the extent our 1996 opinion discussed the felony murder
rule and section 189, it was in the context of Supreme Court
authority holding that, although the felony murder rule does not
provide a basis to convict a defendant of murder when a third
party kills the defendant’s accomplice, section 189 nonetheless is
relevant in determining whether a provocative act murder is in
the first or second degree. (People v. Lee, supra, B088132, at
pp. *6–*7; see Gilbert, supra, 63 Cal.2d at p. 705 [“even though
malice aforethought may not be implied under section 189 to
make a killing murder unless the defendant or his accomplice
commits the killing in the perpetration of an inherently
dangerous felony [citations], when a murder is otherwise
established, section 189 may be invoked to determine its
degree”].)

14
 Applying the above quoted rule from Gilbert, we rejected
Lee’s challenge to a jury instruction “that a murder ‘which occurs
during the commission or attempt to commit the crime of robbery,
when there was in the mind of the perpetrators of such crime the
specific intent to commit robbery, is murder of the first degree.’ ”
(People v. Lee, supra, B088132, at pp. *6–*7.) Our discussion of
the felony murder rule in this context does not establish that Lee
was convicted of felony murder, as would be required under
section 1170.95, and Lee does not argue otherwise. Nor does Lee
argue that Senate Bill No. 1437 impacts the rule from Gilbert.8
Lee argues that “[p]rovocative act murder as charged in the
instant case is a combination of felony murder and natural and
probable consequence murder.” In support, Lee quotes People v.
Concha (2009) 47 Cal.4th 653 (Concha), in which our Supreme
Court stated, “where the defendant perpetrates an inherently
dangerous felony, the victim’s self-defensive killing is a natural
and probable response.” (Id. at p. 661.)
The Supreme Court made this statement in the context of
explaining that a conviction for provocative act murder requires
proof of proximate causation. (See Concha, supra, 47 Cal.4th
at p. 661 [“the defendant is liable only for those unlawful killings
proximately caused by the acts of the defendant or his
accomplice”].) There is no indication in Concha that the Supreme
Court intended to suggest that provocative act murder was a
subset of either felony murder or natural and probable
consequences murder. Nor could it be, given that provocative act
murder requires proof of malice, unlike the felony murder rule or

8 Neither the current viability of the rule from Gilbert nor
the correctness of our application of that rule in our 1996 opinion
is at issue in this appeal, and we express no opinion as to either.

15
natural and probable consequences doctrine as they existed
before Senate Bill No. 1437.
Indeed, Concha itself recognized the malice requirement for
provocative act murder: “[A] defendant is liable for murder when
the actus reus and mens rea elements of murder are satisfied.
The defendant or an accomplice must proximately cause an
unlawful death, and the defendant must personally act with
malice. Once liability for murder is established in a provocative
act murder case or in any other murder case, the degree of
murder liability is determined by examining the defendant’s
personal mens rea and applying section 189.” (Concha, supra,
47 Cal.4th at p. 663, italics added.)
Lee argues that his conduct and mental state did not
satisfy the elements under section 189, subdivision (e) that
would make him culpable for murder, nor did we consider
those elements in our 1996 opinion. Because section 189,
subdivision (e) applies only to felony murder, and Lee was not
convicted of felony murder, this argument fails.

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 DISPOSITION
The judgment is affirmed.

BENDIX, Acting P. J.

We concur:

JOHNSON, J.

WEINGART 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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Filed 5/22/20
CERFIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B297928

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA079332)
v.
CERTIFICATION AND ORDER
KENNY INKWON LEE, FOR PUBLICATION

Defendant and Appellant. [NO CHANGE IN JUDGMENT]

The opinion in the above-entitled matter filed May 1, 2020,
was not certified for publication in the Official Reports. For good
cause it now appears that the opinion should be published in the
Official Reports and it is so ordered.
There is no change in the judgment.
CERTIFIED FOR PUBLICATION.

____________________________________________________________
BENDIX, Acting P. J. JOHNSON, J. WEINGART, J.*

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