I concur and incorporate by reference my opinion in People v. Torres (1979) 96 Cal.App.3d 14 [157 Cal.Rptr. 560], in which I concurred in the majority’s judgment affirming the *131conviction of defendant Torres based on procedural grounds but also addressed at some length the same key issue presented in the instant case by electing to treat that appeal as a writ of habeas corpus.
I note by this opinion Division One of the Second Appellate District now joins Division Two of the Fourth Appellate District (People v. Barlow (1980) 103 Cal.App.3d 351 [163 Cal.Rptr. 664]) and the Fifth Appellate District (People v. Paradise (1980) 108 Cal.App.3d 364 [166 Cal.Rptr. 484]) in their determinations of the issues presented.