Filed 10/18/21 P. v. Swope CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F078006
Plaintiff and Respondent,
(Super. Ct. No. BF164712A)
v.
ARTHUR RAY SWOPE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush and John D. Oglesby, Judges.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Ward A. Campbell, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found Arthur Ray Swope (defendant) guilty of attempting to escape from
jail by use of force. Defendant claims the trial court erred by failing to instruct jurors on
the requirement of unanimity as to the factual basis for the conviction. He makes a
separate request for review of a discovery ruling made pursuant to Pitchess v. Superior
Court (1974) 11 Cal.3d 531 (Pitchess). Defendant has also filed a motion for the
discharge and replacement of his appointed counsel on appeal, which is denied for
reasons set forth herein.
We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 30, 2016, defendant was sentenced to a lengthy prison term in Kern
Superior Court case No. BF159035A. When the proceedings concluded, defendant was
taken from the courtroom to the central receiving facility (CRF). The CRF is a jail
facility connected to the superior court building in Bakersfield.
Having been sentenced that morning, defendant was scheduled to be transported to
another jail en route to Wasco State Prison. Upon returning to the CRF, defendant asked
a sheriff’s deputy to loosen his leg restraints. The deputy examined the restraints and
agreed the shackle around defendant’s right ankle was too tight. The deputy later
testified, “I took off one of the shackles and replaced it with a large zip tie, a thick zip tie,
and then applied the ankle restrain[t] to that. So the zip tie was secured around his ankle
and then the metal one was secured to that.”
Following the adjustment to his restraints, defendant lined up with a group of
inmates waiting to board a 40-foot bus parked in an enclosed area of the CRF known as
the “bus barn.” A closed “roll-up garage door” separated the interior of the bus barn
from an outside parking lot, which was a public area. Two deputies from the
Transportation Department of the Kern County Sheriff’s Office, including Deputy Martin
Rodriguez, oversaw the boarding process.
Once all inmates were thought to be on board, the garage door was opened and the
bus backed out into the parking lot. Deputy Rodriguez soon noticed a pair of jail-issued
pants on the floor of the garage. Puzzled, the deputy told his partner to “just pull the bus
forward about five feet and just wait and see what happens.” Shortly thereafter, a
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disheveled looking man (defendant) appeared behind the vehicle and began walking
toward Truxtun Avenue.
Deputy Rodriguez initially thought defendant was a homeless person because he
was “so dirty” and covered in what was later determined to be motor oil. Another reason
was defendant’s gait. The deputy knew that standard leg restraints force inmates to
“shuffle” along in “little short[] step[s],” but defendant was “walking normal.”
Defendant also swung his left arm as he walked, which a properly restrained inmate
could not do because of the handcuffs. Despite those circumstances, the deputy felt
“something didn’t add up” and thus followed defendant as he moved toward the
intersection of Truxtun and L Street.
Defendant stopped to talk to a pedestrian, which allowed Deputy Rodriguez to
catch up to him and see a pair of handcuffs attached to his right wrist. Deputy Rodriguez
tackled defendant to the ground, at which point a struggle allegedly ensued. After
approximately 30 or 40 seconds, defendant gave up and allowed himself to be escorted
back to the CRF.
The incident prompted a search of the bus barn. In addition to the discarded jail
pants, deputies found a razor blade and a severed zip tie. A review of video footage
captured by a surveillance camera showed defendant sneaking away from the line of
inmates and crawling under the back of the bus.
Later in the day, defendant waived his right to remain silent and gave a recorded
confession. Defendant admitted possessing the razor blade but denied using it during the
incident. He claimed to have used a “sharp hinge” on the underside of the bus to cut
through the zip tie around his leg. Defendant further explained how, with great effort, he
had squeezed his left hand out of the handcuffs. He then removed his brown inmate
pants, which left him wearing a white shirt and “an extra pair of [blue] pants.” Those
acts occurred prior to the bus pulling out of the bus barn.
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Defendant was charged with two felony counts, both pleaded with alternative
theories. Count 1 alleged escape or attempted escape from a prison by use of force or
violence. (Pen. Code, § 4530, subd. (a); all undesignated statutory references are to this
code.) Count 2 alleged escape or attempted escape from a jail by use of force or
violence. (§ 4532, subd. (b)(2).) Defendant was further alleged to have suffered multiple
prior strike convictions as defined by the three strikes law. (§§ 667, subds. (b)–(j),
1170.12, subds. (a)–(e).)
At trial, the People’s case-in-chief established the facts summarized above. The
jury saw video recordings of the incident from two different angles, and it heard an audio
recording of defendant’s confession. The defense rested without presenting any
evidence.
After the close of evidence, the People moved to dismiss count 1. The motion was
granted. The People then elected to base count 2 on a theory of attempted escape. The
jury returned a guilty verdict, and defendant subsequently admitted the prior strike
allegations.
The defense unsuccessfully moved for a new trial on grounds of insufficient
evidence and instructional error. The trial court sentenced defendant to the upper term of
six years in prison, which was doubled to 12 years because of a prior strike. As required
by statute, the term was ordered to be served consecutively to the sentence imposed in
case No. BF159035A. (§ 4532, subd. (b)(2).)
DISCUSSION
I. Alleged Instructional Error
A. Additional Background
Most criminal attempts are governed by the general attempt statutes, i.e., sections
21a and 664. (People v. Medina (2007) 41 Cal.4th 685, 696–697.) The crime of
attempted escape is an exception. Section 4532 prohibits an attempted or completed
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escape from a jail and imposes the same punishment for both crimes. (Id., subds. (b)(1),
(2).) A heightened penalty is imposed if either offense is committed “by force or
violence.” (Id., subd. (b)(2).)
The phrase “force or violence” has been judicially interpreted to mean “‘any
wrongful application of physical force against property or the person of another.’”
(People v. Bravott (1986) 183 Cal.App.3d 93, 97.) In People v. White (1988) 202
Cal.App.3d 862, a finding of force against property was upheld based on the inmate’s use
of a mop handle to make a hole in the ceiling above his cell. (Id. at pp. 864, 867.) More
recently, in People v. Kunes (2014) 231 Cal.App.4th 1438 (Kunes), an inmate who had
been released on home detention was held to have violated section 4532, subdivision
(b)(2), by using a pair of scissors to remove a jail-issued GPS monitoring device from
around his ankle. (Kunes, at p. 1444.) The Kunes opinion explains that only slight force
is required. (Ibid.; accord, White, supra, at pp. 866–867; People v. Lozano (1987) 192
Cal.App.3d 618, 627.)
“Although the term ‘escape’ is not statutorily defined, case law has defined
‘escape’ as the unauthorized or ‘“unlawful departure of a prisoner from the limits of his
custody.”’” (People v. Bailey (2012) 54 Cal.4th 740, 748–749, quoting People v.
Quijada (1921) 53 Cal.App. 39, 41.) It is generally accepted that an escape has occurred,
or at least is in progress, by the time the inmate breaches “the outer limits of the prison
[or jail] property.” (People v. Lavaie (1999) 70 Cal.App.4th 456, 461; see Bailey, at p.
756 (conc. opn. of Werdegar, J.) [discussing “three older decisions” wherein “the
evidence showed a completed escape even though the defendant had not reached the
limits of the correctional facility’s property or grounds when apprehended”].) In People
v. Bigelow (1984) 37 Cal.3d 731 (Bigelow), escape was construed as a continuing act for
purposes of section 190.2, subdivision (a)(5), i.e., murder committed for the purpose of
“perfecting or attempting to perfect, an escape from lawful custody.” The escape is
“‘perfected’” once the defendant “has departed the confines of the prison facility and
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reached a place of temporary safety outside the confines of the prison.” (Bigelow, at p.
754, italics added.)
In this case, defendant’s trial counsel argued the attempt to escape was successful
the moment defendant exited the bus barn and reached the outside parking lot. Based on
this theory of a “perfected” escape, counsel argued the alleged struggle with Deputy
Rodriguez on Truxtun Avenue constituted resisting arrest but not escape by force or
violence. Although Bigelow was not cited, the trial court rejected the defense argument
and concluded escape is a continuing offense until the inmate reaches a place of
temporary safety. In its discussion of the issue, the trial court reminded the prosecutor,
“[T]he jury has got to agree unanimously which facts they are relying on.”
The prosecutor later moved to dismiss count 1 and elected to argue a theory of
attempted escape as the basis for liability under section 4532, subdivision (b)(2). This
was described as “a tactical decision made by the People in light of some of the
discussions … regarding issues with sending unanimity on a factual basis [sic] ….” The
court continued, “And, with that, I don’t believe either side is requesting unanimity on
that from the People’s point of view or the defense.” Defense counsel agreed, and the
trial court did not provide a unanimity instruction to the jury.
Earlier in the trial, citing the “very unique” circumstance of the incident occurring
“at the courthouse,” the prosecutor had argued (to the trial court) that defendant’s attempt
to escape should be viewed as a continuing offense despite his movement beyond the
physical confines of the jail. The prosecutor reasserted this position in closing argument
to the jury. The argument focused on the element of force or violence: “The shackles
were important because one of the issues as I think you’ll see there’s a lesser included
without force.… [¶] [Y]ou don’t have to agree [on when defendant used force] because
this is one big story from 8:30 in the morning until close to noon when he’s tackled by
Deputy Rodriguez.”
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The prosecutor initially emphasized defendant’s actions while inside of the bus
barn. For example: “[H]e’s fighting to get his pants off; fighting to slip shackles.
There’s force. He’s fighting to get the plastic zip tie cut and he told you he cuts the zip
tie. Whether it was with a razor blade or something sharp under the bus, it doesn’t
matter.… [¶] … You saw him crawl [under] the bus. Saw him cut the zip tie. And
here’s your attempt right here. This is where it starts. [¶] … Shimmying his pants or
shimmying and slipping cuffs, cutting cuffs, these are all force.”
As the argument progressed, the focus shifted to the incident on Truxtun Avenue:
“You can find force or violence at any point from the beginning of the story to the end of
the story but there is force and there is violence at the end of the story. After Deputy
Martin Rodriguez tackles him, he explains to you that he’s using body weight to buck
him off. He’s elbowing him. He’s making physical contact with his body.”
The prosecutor concluded by restating the dual theories of liability: “Force or
violence is to wrongfully use physical force against property of a person. Now,
remember, that’s a K[ern County Sheriff’s Office] zip tie. I understand it might just cost
a penny but that’s County property that he used force against to assist in his attempted
escape. And he used violence against the person who attempted to stop him or did stop
him.”
In the defense closing argument, trial counsel argued the struggle with Deputy
Rodriguez on Truxtun Avenue was irrelevant because “[i]f you’re an inmate and you’re
outside the bus barn, you’re an escapee.” In other words, “You can’t attempt to escape
once you’ve escaped.” Counsel also briefly argued any force defendant used against
property before exiting the bus barn was insufficient. While this rationale would
impliedly suggest defendant committed the lesser offense of attempted escape without
force or violence (§ 4532, subd. (b)(1)), counsel essentially argued that a completed
escape precludes liability for attempted escape. However, the jury was properly
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instructed that “defendant may be guilty of attempt even if you conclude that the escape
was actually completed.” (See further discussion, post.)
B. Legal Analysis
Defendant’s appellate counsel does not dispute the prosecution’s theory of the
attempted escape being a continuing offense even though defendant was apprehended on
a public street. The opening brief assigns error to the lack of a unanimity instruction
because of the People’s reliance on multiple discrete acts to prove the element of force or
violence. Since the issue has not been raised, we do not address the merits of the
prosecution’s continuing offense theory. However, we note that “[a] person charged with
an attempted crime may be convicted of such even if the evidence at trial shows that the
crime was completed.” (People v. Mejia (2012) 211 Cal.App.4th 586, 605, citing § 663;
accord, People v. Robins (2020) 44 Cal.App.5th 413, 420.) “Further, evidence tending to
prove that the crime was completed, even though not absolute proof of the crime of
attempt, gives rise to a reasonable inference that the perpetrator intended to commit that
crime.” (People v. Rundle (2008) 43 Cal.4th 76, 138, fn. 28, disapproved on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Therefore, the fact
defendant may have succeeded in escaping from jail does not preclude the conviction of
attempted escape. (§ 663.)
As for the issue presented, “‘if one criminal act is charged, but the evidence tends
to show the commission of more than one such act, “either the prosecution must elect the
specific act relied upon to prove the charge to the jury, or the court must instruct the jury
that it must unanimously agree that the defendant committed the same specific criminal
act.”’” (People v. Brown (2017) 11 Cal.App.5th 332, 341.) “On the other hand, where
the evidence shows only a single discrete crime but leaves room for disagreement as to
exactly how that crime was committed …, the jury need not unanimously agree on the
basis or, as the cases often put it, the ‘theory’ whereby the defendant is guilty.” (People
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v. Russo (2001) 25 Cal.4th 1124, 1132.) If the circumstances warrant a unanimity
instruction, the trial court has a sua sponte duty to give one. (People v. Riel (2000) 22
Cal.4th 1153, 1199.)
Simply stated, “[a] unanimity instruction is required if there is evidence that more
than one crime occurred, each of which could provide the basis for conviction under a
single count.” (People v. Grimes (2016) 1 Cal.5th 698, 727.) We conclude that
regardless of whether the evidence tended to show two distinct crimes, defendant’s claim
fails for lack of prejudice. “There is a split of opinion in the appellate courts as to
whether the Chapman standard or Watson standard for harmless error applies in a
unanimity instruction case[,]” but here the alleged error is harmless under either standard.
(People v. Hernandez (2013) 217 Cal.App.4th 559, 576, referencing Chapman v.
California (1967) 386 U.S. 18 and People v. Watson (1956) 46 Cal.2d 818.)
When a defendant relies on “the same defense to all criminal acts and ‘the jury’s
verdict implies that it did not believe the only defense offered,’ failure to give a
unanimity instruction is harmless error.” (People v. Hernandez, supra, 217 Cal.App.4th
at p. 577.) Likewise, “[w]here the record indicates the jury resolved the basic credibility
dispute against the defendant and therefore would have convicted him of any of the
various offenses shown by the evidence, the failure to give the unanimity instruction is
harmless.” (People v. Thompson (1995) 36 Cal.App.4th 843, 853.) For example, in
People v. Parsons (1984) 156 Cal.App.3d 1165 a unanimity error was deemed harmless
because “appellant was unable to proffer any defense, but merely put the People to their
proof.” (Id. at p. 1174.)
The evidence of defendant’s attempted escape was uncontroverted. As discussed,
the jury saw a video of him ducking out of line, scurrying toward the rear wheels of the
bus, and crawling underneath the vehicle. Those actions, combined with the statements
made in his recorded confession, eliminated any reasonable doubt as to defendant’s intent
to unlawfully depart from the physical limits of custody. (See People v. Bailey, supra, 54
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Cal.4th at p. 749 [“Unlike escape, attempt to escape requires a specific intent to
escape”].) Furthermore, as appellate counsel concedes “[t]here was evidence [defendant]
attempted to escape by force or violence when he cut the zip tie that secured his legs.”
The facts on the issue of force are analogous to those in Kunes, where the
appellant used a pair of scissors to remove a GPS monitoring device from around his
ankle. (Kunes, supra, 231 Cal.App.4th at p. 1444.) Defendant’s admitted use of a “sharp
hinge” to break the zip tie attached to his ankle established the requisite force against
property. Defendant admitted he “cut it off underneath the bus,” which must have
occurred prior to him exiting the bus barn since the broken zip tie was found on the floor
of the garage along with the discarded jail pants and razor. Therefore, even if
defendant’s trial counsel was correct about the escape being accomplished when the bus
backed out of the enclosure, a properly instructed jury would have undoubtedly found
defendant’s conduct while inside the garage established the elements of attempted escape
by force. (Cf. People v. Wolfe (2003) 114 Cal.App.4th 177, 188 [lack of unanimity
instruction on gun possession charge held harmless given appellant’s “damning
admission” of owning firearms]; see generally People v. Russo, supra, 25 Cal.4th at p.
1132 [the “requirement of unanimity as to the criminal act ‘is intended to eliminate the
danger that the defendant will be convicted even though there is no single offense which
all the jurors agree the defendant committed’”].)
II. Pitchess Review
As held in Pitchess, criminal defendants have a limited right to the discovery of
peace officer personnel records to ensure “a fair trial and an intelligent defense in light of
all relevant and reasonably accessible information.” (Pitchess, supra, 11 Cal.3d at p.
535.) The process for obtaining such discovery is set forth in Penal Code sections 832.7
and 832.8, and Evidence Code sections 1043 through 1045. (Chambers v. Superior
Court (2007) 42 Cal.4th 673, 679.) “The procedure requires a showing of good cause for
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the discovery, an in camera review of the records if good cause is shown, and disclosure
of information ‘relevant to the subject matter involved in the pending litigation.’”
(People v. Thompson (2006) 141 Cal.App.4th 1312, 1316, quoting Evid. Code, § 1045,
subd. (a).) A trial court’s ruling on a Pitchess motion is reviewed for abuse of discretion.
(Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
Defendant filed a Pitchess motion concerning a sheriff’s deputy involved in the
underlying incident. He sought to discover evidence of any prior “dishonest conduct.”
The trial court found good cause for an in camera review of the deputy’s personnel
records, and it ultimately ordered certain information disclosed to the defense. Defendant
now requests an independent review of the Pitchess proceedings to ensure no
discoverable information was withheld. Having reviewed a transcript of the confidential
hearing, as well as the material produced by the custodian of records, we perceive no
error in the trial court’s ruling. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228–1232
[outlining the steps for evaluating a Pitchess motion in the trial court and on appeal].)
III. Motion for Substitute Counsel
Defendant is currently represented by appointed counsel. He has filed a motion to
“dismiss,” i.e., discharge, his appointed counsel “and replace him with competent
counsel.” Defendant complains of the attorney’s failure to pursue what defendant
believes are meritorious theories of reversible error.
“‘The general rule that a defendant who is represented by an attorney of record
will not be personally recognized by the court in the conduct of his case applies to the
filing of pro se documents on appeal.’” (People v. Clark (1992) 3 Cal.4th 41, 173.)
However, an appellate court “will accept and consider pro se motions regarding
representation, including requests for new counsel. (Cf. People v. Marsden [(1970)] 2
Cal.3d 118.)” (Id. at p. 173.) In the analogous Marsden context, a defendant must be
given the opportunity “‘to explain the basis of his contention and to relate specific
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instances of the attorney’s inadequate performance.’” (People v. Fierro (1991) 1 Cal.4th
173, 204.) “‘A defendant is entitled to relief if the record clearly shows that the first
appointed attorney is not providing adequate representation [citation] or that defendant
and counsel have become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result [citations].’ [Citations.]” (Ibid.)
“Effective appellate counsel should not raise every nonfrivolous argument on
appeal, but rather only those arguments most likely to succeed. [Citation.] Declining to
raise a claim on appeal, therefore, is not deficient performance unless that claim was
plainly stronger than those actually presented to the appellate court.” (Davila v. Davis
(2017) 582 U.S. ___, ___ [137 S.Ct. 2058, 2067].) With these principles in mind, we
turn to defendant’s legal arguments.
Defendant heavily relies on his trial counsel’s theory of the case, i.e., that his
attempt to escape was successful the moment he crossed the threshold of the garage and
entered a public area. His theories of reversible error likewise concern the prosecution’s
reliance on the encounter with Deputy Rodriguez on Truxtun Avenue. For example,
defendant faults his appellate counsel for not challenging the trial court’s ruling on a
motion in limine to exclude evidence of the alleged struggle “as irrelevant and contrary to
Evidence Code [section] 352.”
Like his trial attorney, defendant seems to believe a completed escape precludes
liability for an attempted escape. His arguments suggest a lack of familiarity with section
663. The statute provides, in relevant part: “Any person may be convicted of an attempt
to commit a crime, although it appears on the trial that the crime intended or attempted
was perpetrated by such person in pursuance of such attempt ….” (§ 663.) As we have
discussed, the statute “specifically permits a defendant to be convicted of the crime of
attempt even if it is proved he succeeded.” (In re Sylvester C. (2006) 137 Cal.App.4th
601, 610.) Put differently, “the state is not barred from imposing punishment for an
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attempt merely because the crime has been completed.” (People v. Parrish (1985) 170
Cal.App.3d 336, 342–343.)
Any claim based on the prosecution’s reliance on the Truxtun Avenue incident
would ultimately be subject to the harmless error analysis we have applied to the claim of
instructional error. Therefore, such claims are not “plainly stronger than those actually
presented” by defendant’s appointed counsel. (Davila v. Davis, supra, 582 U.S. at p. __,
[137 S.Ct. at p. 2067].) The same is true of defendant’s suggested challenge to the
sufficiency of evidence regarding the element of force.
Defendant argues “the removal of the zip tie did not and could not have assisted
with the escape or an attempted escape” since he merely clung to the underside of the bus
as it moved. Section 4532, subdivision (b)(2) is violated if an “escape or attempt to
escape … is committed by force or violence.” An attempted escape “requires a ‘direct,
unequivocal act to effect that purpose.’” (People v. Lancaster (2007) 41 Cal.4th 50, 94.)
“The ‘force’ may be any wrongful use of force against property.” (Kunes, supra, 231
Cal.App.4th at p. 1444.) Accordingly, the trial evidence permitted the conclusion
defendant’s attempted escape involved the use of force. (See People v. White, supra, 202
Cal.App.3d at p. 866 [“The Legislature may have … decided it was simply too difficult to
distinguish between types of force an escaping felon might use against property. The
Legislature’s solution … was to create a relatively large, almost all-inclusive class, and to
include those whose escapes are accomplished with a minimum amount of force against
property”].)
Defendant also faults his appellate attorney for not claiming ineffective assistance
of counsel based on his trial attorney’s failure to object to alleged misstatements of law
by the prosecutor during closing argument. Appellate counsel’s decision not to present
such a claim is understandable. First, “[i]t is rarely appropriate to resolve an ineffective
assistance claim on direct appeal.” (People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
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Second, “the failure to object rarely establishes prejudice.” (People v. Freeman (1994) 8
Cal.4th 450, 520; accord, People v. Caro (2019) 7 Cal.5th 463, 514.)
For the reasons discussed, the record does not “‘clearly show[]’” that appellate
counsel is “‘not providing adequate representation … or that defendant and counsel have
become embroiled in such an irreconcilable conflict that ineffective representation is
likely to result.’” (People v. Fierro, supra, 1 Cal.4th at p. 204.) Defendant’s motion is
therefore denied.
DISPOSITION
The judgment is affirmed.
PEÑA, Acting P. J.
WE CONCUR:
MEEHAN, J.
DE SANTOS, J.
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