Filed 4/6/21 P. v. Moorer CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B305731
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA286416)
v.
D’ANDRE K. MOORER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Michael D. Abzug, Judge. Affirmed.
Thomas T. Ono, 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, Charles S. Lee and Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
While D’Andre K. Moorer (appellant) drove a vehicle, one of
his passengers shot and killed Michael Livingston (Livingston).
In 2007, a jury convicted appellant of first-degree murder. (Pen.
Code, § 187, subd. (a).)1 As a special circumstance, the jury found
true that the offense was perpetrated by means of discharging a
firearm from a motor vehicle with the intent to inflict death.
(§ 190.2, subd. (a)(21).) With respect to enhancement allegations,
the jury found true that the offense was committed for the benefit
of, at the direction of, or in association with a criminal street
gang (§ 186.22, subd. (b)(1)(A)), and that a principal personally
discharged a firearm and thereby caused Livingston to suffer
great bodily injury or death (§ 12022.53, subds. (d) & (e)(1)).
Also, appellant pleaded guilty to possession of a firearm by a
felon. (Former § 12021, subd. (a)(1).)
On the first-degree murder count, appellant was sentenced
to life in prison without the possibility of parole, plus 25 years to
life for the firearm enhancement. He appealed. The murder
conviction was affirmed in People v. Moorer (July 21, 2009,
B205740) [nonpub. opn.] (Moorer I).
In 2019, appellant filed a petition for resentencing under
section 1170.95, claiming he was convicted under the natural and
probable consequences doctrine that was abrogated by Senate
Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437). The trial court
appointed counsel, considered briefing by the parties, and then
denied the petition without holding an evidentiary hearing.
Appellant challenges that denial order on appeal. We find no
error and affirm.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTS
The Record Regarding the 2005 Shooting
“On March 29, 2005, appellant, a member of the Eight-Trey
Hoovers gang known as ‘Scandalous D,’ was driving to Las Vegas
with fellow gang member Donald ‘Baby Jap’ Shorts (Shorts) and
Shorts’ girlfriend Gloria Ramirez (Ramirez). On the freeway,
appellant, who was the driver, drove near [Livingston], a member
of the Long Beach O-Hood Crips gang, which was a rival to the
Hoovers gang. Livingston, who was on the left side of appellant’s
car, exchanged gang signs and angry words with appellant and
Shorts, who was in the front passenger seat. Livingston slowed
down, dropped back, and moved to the right side of appellant’s
car. Appellant slowed down, keeping pace with Livingston, as
the men continued to yell at each other.
“From the backseat, Ramirez could see Shorts’ hands, back
and shoulders moving. Ramirez ducked her head, believing that
something bad was about to happen. Ramirez did not want to
hear more arguing. She closed her eyes and began praying
because of the behavior of appellant and Shorts. Maria
Hernandez and Gladys Medrano, who were driving behind
appellant, believed the occupants of the vehicles were going to
argue or fight because they both slowed down, moved close
together, and drove next to each other. Shorts fired four shots,
shooting Livingston twice in the head, killing him and causing
the car to crash. Appellant immediately exited the freeway, got
back on, and drove to Las Vegas, laughing and exchanging jokes
with Shorts.
“Ramirez testified that Shorts shot Livingston because the
men threw gang signs at each other. Ross Garrett, a fellow gang
member of Livingston, testified that when rivals throw gang
3
signs at each other, anything can happen, including murder.
Los Angeles Police Officer Mario Cardona, a gang expert,
testified that members of the Hoovers gang gain respect by
committing violent crimes, including murder, and expect
members to violently confront rivals, at the risk of losing respect
and being attacked by fellow gang members. A younger gang
member, who would not do anything to anger a senior member, is
expected to protect the older member and to tell him if he is
armed. He testified that appellant was well respected within the
Hoovers gang and had been a member for at least seven years.”
(Moorer I, supra, B205740 at pp. 3–4.)
Moorer I
On appeal, appellant argued, inter alia, that the record
contained insufficient evidence that he aided and abetted the
murder “because [it] did not support the finding that appellant
knew that Shorts had a gun or that Shorts intended to shoot
Livingston.” (Moorer I, supra, B205740 at p. 4.)
The appellate court disagreed.
It stated: “Appellant did not testify and we can only derive
his intent from the circumstances of the incident, including his
own actions. The evidence showed that appellant and Shorts,
who were members of the Hoovers gang, engaged in a
confrontation with Livingston, who was from a rival gang. The
men yelled at each other and threw gang signs and Livingston
maneuvered his car so that he was to the right of appellant’s car.
The jury could well conclude that rather than driving away from
Livingston, appellant intentionally slowed down and matched
Livingston’s speed to help Shorts shoot Livingston. Indeed,
Hernandez and Medrano believed that the men were about to
fight because the cars slowed down and maintained their position
4
side by side. In fact, before Shorts fired the gun, Ramirez could
see that he was moving his shoulders and arms in the front of the
car so she ducked her head because she knew that something bad
was going to happen. She also closed her eyes and began
praying. From this evidence the jury could infer that appellant,
in the driver’s seat with a clear view of Shorts, knew that Shorts
was getting ready to shoot at Livingston.
“And, appellant did not exhibit surprise when Shorts shot
Livingston. The subsequent conduct of appellant may be relevant
to prove motive and intent. (People v. Campbell (1994) 25
Cal.App.4th 402, 409 [jury could reasonably conclude that the
defendant intended to aid and abet codefendant by remaining in
position in front of the robbery victims and failing to show
surprise at codefendant brandishing a firearm at the victims].)
After the shooting, appellant immediately got off the freeway,
then got back on and continued to drive to Las Vegas, laughing
and joking with Shorts. We conclude that the evidence was
sufficient to support the jury’s conclusion that appellant intended
to assist Shorts in shooting Livingston.
“Further, Officer Cardona’s testimony . . . also provided
evidence that appellant knew Shorts was armed and that he
wanted to kill Livingston. . . .
“. . . [T]he People proved beyond a reasonable doubt that
appellant had the mens rea necessary to establish that he aided
and abetted Shorts’ actions.” (Moorer I, supra, B205740 at pp. 4–
6.)
SB 1437
SB 1437 went into effect on January 1, 2019 (see Stats.
2018, ch. 1015, § 4), added section 1170.95, and amended sections
5
188 and 189. (People v. Ramirez (2019) 41 Cal.App.5th 923, 928
(Ramirez).)
As amended, section 188 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).) As added by
SB 1437, section 189, subdivision (e) provides: “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[.]” (Ramirez, supra, 41
Cal.App.5th at p. 928)
Section 1170.95 permits a petitioner to file a petition for
resentencing if he was convicted under a theory of felony murder
or murder under the natural and probable consequences doctrine,
and if he could not have been convicted under the current law.
(Ramirez, supra, 41 Cal.App.5th at p. 929.) First, the trial court
reviews the petition to determine whether any necessary
information is missing. (§ 1170.95, subd. (b)(2).) Second, the
trial court reviews the petition to determine whether the
petitioner has made a prima facie showing that he falls within
the provisions of the statute. “If the petitioner has requested
counsel, the court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a response within
6
60 days of service of the petition and the petitioner may file and
serve a reply within 30 days after the prosecutor response is
served. . . . If the petitioner makes a prima facie showing that he
or she is entitled to relief, the court shall issue an order to show
cause.” (§ 1170.95, subd. (c).) Third, the trial court holds “a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not
been previously sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.” (§ 1170.95, subd.
(d)(1).) “At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing. If the prosecution fails to sustain its
burden of proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
the petitioner shall be resentenced on the remaining charges.
The prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens.” (§ 1170.95, subd. (d)(3).)
Appellant’s Petition for Resentencing
Appellant filed his petition for resentencing on January 7,
2019. He stated, among other things, that the jury convicted him
pursuant to the felony murder rule or the natural and probable
consequences doctrine, and that he did not act with the intent to
aid and abet the actual killer in the commission of first-degree
murder.
The trial court granted appellant’s request for court
appointed counsel.
7
Appellant filed a brief in support of the petition in which he
argued that the trial court should issue an order to show cause,
hold an evidentiary hearing and take the testimony of Shorts and
Ramirez. At no point did appellant argue that he had made a
prima facie showing of eligibility. Rather, he provided an
October 23, 2016, declaration from Shorts, who declared: he and
appellant are friends from different “Hoover” gangs; on their way
to Las Vegas, a crazy driver pulled up next to their car on the left
and threw gang signs; while appellant waved the crazy driver on,
Shorts responded with his own gang signs; the crazy driver
dropped back, came around to the right side of their car, and
glided in close as he began yelling; the crazy driver reached over
himself with his right hand; Shorts panicked and shot the crazy
driver three or four times; afterwards, appellant was “kind of
mad” and did not talk the whole way to Las Vegas; “no one in the
car with me knew that that’s what that was leading up to;” “I was
the only one in the car that day who knew that I had a gun on
me;” “at the time of the incident there was nothing” appellant
could have done; appellant did not have higher gang status than
Shorts; and appellant should not be held responsible for the
shooting.2
The prosecution opposed and argued that appellant had not
made a prima facie showing of eligibility because, inter alia, the
jury necessarily found that appellant directly aided and abetted
first-degree murder given that it found true the special
2 Appellant also offered a letter from Shorts. It did not
qualify as a declaration because he did not sign it under penalty
of perjury. (Code Civ. Proc., § 2015.5.) Thus, it was neither
admissible nor relevant.
8
circumstance allegation under section 190.2, subdivision (a)(21)
that the murder was committed by discharging a firearm from a
vehicle with the intent to kill. Next, the prosecution argued that
the Shorts declaration was inherently unreliable, and that it was
inconsistent with the trial testimony and the recitation of facts in
Moorer I.3 As an exhibit, the People offered a copy of Moorer I.
At the hearing, defense counsel argued that the Shorts
declaration established a prima facie showing of eligibility. The
trial court replied that “the purpose of the prima [facie] showing
is to make the prima [facie] showing before we start having
evidentiary hearings, and [for] you . . . [to] suggest that you can
. . . [have an] evidentiary hearing [at the prima facie review
stage] seems to me to put the proverbial cart before the horse.”
Nonetheless, it indicated that it had considered the declaration.
The trial court issued a ruling that stated, “The
prosecution’s opposition makes a thorough and compelling
showing that [appellant] was not convicted because of the
‘natural and probable consequences’ instruction that was
delivered to the jury.” It also stated: “[T]he evidence, arguments
of counsel and, most importantly, the first-degree murder verdict
and special circumstances findings . . . establish[] beyond a doubt
that [appellant] was convicted because the jury found that he
aided and abetted the actual shooter with the intent to kill the
victim.” Finally, the trial court concluded that the “operative
language of the declaration lacks foundation. In short,
Mr. [Shorts’] opinion that [appellant] did not have the intent to
kill when [Shorts] fired his weapon is inadmissible. Moreover,
3 The People offered other arguments but they are not
relevant to our analysis.
9
. . . the balance of the admissible portions of the declaration [are]
arguably inculpatory.”4
The trial court ruled that appellant had failed to present a
prima facie case of eligibility and denied the petition without an
evidentiary hearing.
This appeal followed.
DISCUSSION
Appellant claims the trial court denied him procedural due
process when it refused to recognize his statutory right to
introduce the declaration of Shorts into evidence during the
prima facie review stage contemplated by section 1170.95,
subdivision (c). Procedural due process and statutory
interpretation issues are subject to de novo review. (Christensen
v. Lightbourne (2019) 7 Cal.5th 761, 771; Kwan Software
Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 82.)
Additionally, appellant contends that he made a prima facie
showing of eligibility for resentencing under section 1170.95,
subdivision (c) and the trial court therefore erred when it did not
issue an order to show cause and set a hearing to determine
whether to vacate the murder conviction, recall the sentence, and
resentence appellant. This is a predominantly legal issue that is
also subject to de novo review. (People v. Garcia (2020) 57
Cal.App.5th 100, 110 (Garcia).)
4 It appears that the trial court did not deem its analysis of
the Shorts’ declaration as anything more than a secondary reason
for denying the petition. At one point, it stated that “[p]rojections
about what the defense may be able to establish at an evidentiary
hearing do not discharge the defendant’s prima facie burden; the
defense has cited no authority to support that proposition nor
does it square with the notion of a prima facie showing.”
10
I. The Trial Court’s Handling of the Shorts Declaration at
the Prima Facie Review Stage Under Section 1170.95,
Subdivision (c).
Appellant’s right to procedural due process served as a
constitutional guardrail in the proceedings below. (People v.
Brown (1999) 75 Cal.App.4th 916, 929 [“The inquiry in a due
process claim is whether or not the challenged conduct has
impinged upon the defendant’s fundamental right to a fair
process”].) Whether he was denied that guardrail hinges upon
whether the trial court unfairly deprived him of a right to offer
evidence with significant probative value. (People v. Babbitt
(1988) 45 Cal.3d 660, 684.)
Section 1170.95, subdivision (c) requires a petitioner to
make a prima facie showing of eligibility. It does not specify that
new or additional evidence such as the Shorts declaration can be
submitted to the trial court. The appellate courts have
determined that section 1170.95, subdivision (c) “permits the
superior court to review the record of conviction as well as the
averment of the petition, and to summarily deny the petition
without appointment of counsel where this initial review reveals
that the petitioner is ineligible for relief as a matter of law.”
(People v. Nunez (2020) 57 Cal.App.5th 78, 90, fn. 5, review
granted Jan. 13, 2021, S265918.) Case law has ironed out that
the record of conviction includes the charging documents, court
file, jury instructions, the prior opinion on direct appeal, and the
record in that appeal. (People v. Daniel (2020) 57 Cal.App.5th
666, 676; People v. Lewis (2020) 43 Cal.App.5th 1128, 1140,
review granted Mar. 18, 2020, S260598; People v. Verdugo (2020)
44 Cal.App.5th 320, 327, review granted Mar. 18, 2020, S260493;
People v. Woodell (1998) 17 Cal.4th 448, 451.) No case has
11
interpreted section 1170.95, subdivision (c) as permitting a
petitioner to submit new or additional evidence. Only after the
prima facie review stage is new or additional evidence allowed.
(Garcia, supra, 57 Cal.App.5th at pp. 117–118 [ “[o]nce a
petitioner makes a prima facie showing, the evidentiary gate is
open since there appears to be no limit on retrying the case”].)
Appellant essentially acknowledged this case law below.
His brief stated, “While the [trial] court may consider both the
record of conviction and additional evidence after an order to
show cause has been issued (section 1170.9[, subdivision] (d)(3)),
at the prima facie [review] stage the [trial court] must consider
whether something is part of the record of conviction and then
whether it is also admissible under the rules of evidence.” The
brief also stated that at the prima facie review stage, the trial
court “may consider the abstract of judgment, charging
documents, plea forms, . . . the trial proceedings/transcripts, and
appellate court record and appellate opinion. Each of these items
are considered part of the ‘record of conviction’ and admissible
under the rules of evidence.”
On appeal, appellant argues that “section 1170.95,
[subdivision (d)(3)] permits the parties at the show cause hearing
to ‘offer new or additional evidence,’ as well as rely on the record
of conviction. In light of this possibility, appellant contends that
the trial court could not categorically state at this point, beyond a
reasonable doubt, that the proffered testimony of [Shorts] would
not have entitled him to resentencing.” He does not, however,
offer any statutory interpretation to explain why section 1170.95,
subdivision (c) permitted him to submit new or additional
evidence at the prima facie review stage of the proceedings.
Appellant’s argument is a “general assertion, unsupported by
12
specific argument.” (People v. Stanley (1995) 10 Cal.4th 764,
793.) He “apparently assum[es] this court will construct a theory
supportive of his” appeal, but that “is not our role.” (Ibid.) “One
cannot simply say the court erred, and leave it up to the appellate
court to figure out why. [Citation.]” (Niko v. Foreman (2006) 144
Cal.App.4th 344, 368.) “When an appellant fails to raise a point,
or asserts it but fails to support it with reasoned argument and
citations to authority, we treat the point as waived. [Citations.]”
(Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th
857, 862.)
We conclude that appellant failed to demonstrate that the
trial court denied him procedural due process.
II. Prima Facie Showing of Eligibility.
If the record of conviction establishes that a petitioner was
convicted on a ground that remains valid notwithstanding the
changes in the law spawned by SB 1437, then the petitioner is
not eligible for relief under section 1170.95. (People v. Verdugo,
supra, 44 Cal.App.5th at p. 330.) Appellant must demonstrate
that he made a prima facie case that he was convicted on a
natural and probable consequences theory and not on a direct
aiding and abetting theory supported by a finding that he acted
with malice. (§ 187, subd. (a) [“Murder is the unlawful killing of
a human being . . . with malice aforethought”]; § 188, subd. (a)(1)
& (2) [malice may be express or implied; express malice is when
“there is manifested a deliberate intention to unlawfully take
away the life of a fellow creature;” implied malice is when, inter
alia, “the circumstances attending the killing show an abandoned
and malignant heart;” except as stated in section 189, subdivision
(e), a principal in a crime cannot be convicted of murder unless he
or she acts with malice].)
13
Appellant suggests that he made a prima facie showing of
eligibility because the jury was instructed on a natural and
probable consequences theory, and because the Shorts
declaration suggests that appellant did not harbor the intent to
kill Livingston.
This suggestion falls prey to the false assumption that the
Shorts declaration was admissible. It was not, as we have
explained. More importantly, the section 190.2, subdivision
(a)(21) special circumstance finding against appellant establishes
that, per the jury, the “murder was intentional and perpetrated
by means of discharging a firearm from a motor vehicle,
intentionally at another person or persons outside the vehicle
with the intent to inflict death.” Thus, the jury found that
appellant acted with express malice as currently defined because
acting with the intent to inflict death qualifies as a manifested
intention to unlawfully take away a human life. Appellant was
not eligible for relief.5
5 In opposition to the section 1170.95 petition, the
prosecution erroneously argued that the natural and probable
consequences doctrine could not be used to prove first-degree
murder in 2007 and therefore appellant could not have been
convicted under that doctrine. (People v. Chiu (2014) 59 Cal.4th
155, 158–159 [changing the law in 2014 and holding that “an
aider and abettor may not be convicted of first degree
premeditated murder under the natural and probable
consequences doctrine”].) Appellant contends that the trial court
accepted the prosecutor’s erroneous argument and therefore the
denial of his petition must be reversed. But it did not expressly
or solely rely on the prosecution’s erroneous argument. Rather, it
relied on the evidence, the first-degree murder conviction and the
special circumstance finding. As we have explicated, the special
14
Alternatively, appellant contends that People v. Torres
(2020) 46 Cal.App.5th 1168, 1179 (Torres), review granted
June 24, 2020, S262011, dictates that a special circumstance
finding under section 190.2, subdivision (a)(21) cannot be used to
make a finding of ineligibility.
In Torres, the defendant was convicted on two counts of
first degree felony murder. (Torres, supra, 46 Cal.App.5th at
p. 1172.) The jury found true the special circumstance under
section 190.2, subdivision (a)(17) that the murders were
committed during the commission of robberies.6 The jury also
found true that the defendant aided and abetted the robberies as
a “major participant” and with “reckless indifference to human
life” for purposes of section 190.2, subdivision (d). (Torres, supra,
46 Cal.App.5th at p. 1172.)7
circumstance finding under section 190.2, subdivision (a)(21)
supported the denial.
6 Section 190.2, subdivision (a)(17) applies to both robbery
and burglary. (§§ 211, 212.5.)
7 Section 190.2, subdivision (d) provides: “Notwithstanding
subdivision (c), every person, not the actual killer, who, with
reckless indifference to human life and as a major participant,
aids, abets, counsels, commands, induces, solicits, requests, or
assists in the commission of a felony enumerated in paragraph
(17) of subdivision (a) which results in the death of some person
or persons, and who is found guilty of murder in the first degree
therefor, shall be punished by death or imprisonment in the state
prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has
been found to be true[.]”
15
Subsequently, the defendant filed a petition for
resentencing under section 1170.95. The trial court denied the
petition based on the special circumstance findings, concluding
that those findings established that he could still be convicted of
murder even after SB 1437 added section 189, subdivision (e).
(Torres, supra, 46 Cal.App.5th at p. 1172; People v. Gentile (2020)
10 Cal.5th 830, 842.)8
Torres noted that People v. Banks (2015) 61 Cal.4th 788
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark)
construed the meaning of the terms “major participant” and
“reckless indifference to human life” in section 190.2, subdivision
(d) in a “significantly different and narrower manner than courts
had previously.” (Torres, supra, 46 Cal.App.5th at p. 1179.) As a
result, Torres held that the trial court erred in ruling that the
pre-Banks and Clark robbery-murder special-circumstance
findings by the jury established that the defendant was ineligible
for section 1170.95 relief, i.e., that under section 189, subdivision
(e), he could still be convicted.
We observe that “[o]ur appellate courts have recently split
over whether such a pre-Banks/Clark special circumstance
8 Section 189, subdivision (e) provides: “ 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 and abetted] . . . 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.” Robbery is a listed felony in section 189,
subdivision (a).
16
finding renders a petitioner ineligible for relief under section
1170.95 as a matter of law. [Citation.]” (People v. Jones (2020)
56 Cal.App.5th 474, 478–479, review granted Jan. 27, 2021,
S265854.) In any event, the point is moot because appellant’s
jury made a special circumstance finding under section 190.2,
subdivision (a)(21) and found that appellant acted with the intent
to inflict death. The jury did not make “major participant” and
“reckless indifference to human life” findings under section 190.2,
subdivision (d) with respect to a special circumstance finding
under section 190.2, subdivision (a)(17). Torres does not factor
into our analysis.
All other issues are moot.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
_______________________, J.
CHAVEZ
17