Filed 10/5/16 P. v. Veronokis CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent, C080315
v. (Super. Ct. No. 14F1496)
GEORGE SPYRO VERONOKIS,
Defendant and Appellant.
A jury convicted defendant George Spyro Veronokis of maintaining a place to sell
or use heroin (Health & Saf. Code, § 11366),1 possession of heroin for sale (§ 11351),
possession of marijuana for sale (§ 11359), furnishing heroin (§ 11352, subd. (a)), and
two counts of possession of heroin (§ 11350, subd. (a)). The trial court sentenced him to
serve six years four months in state prison.
1 Undesignated statutory references are to the Health and Safety Code.
1
On appeal, defendant contends: (1) the trial court erred in denying his Pitchess2
motion; (2) there is insufficient evidence to support the furnishing conviction; (3) Penal
Code section 654 bars a separate punishment for the furnishing and the maintaining a
place offenses; and (4) there is a sentencing error in the minute order and abstract of
judgment. We conclude the trial court did not abuse its discretion in denying the Pitchess
motion, substantial evidence supports the furnishing conviction, and Penal Code section
654 did not bar punishment for both the furnishing and maintaining a place counts.
However, there is a sentencing error in the minute order and abstract of judgment that
needs to be corrected. Accordingly, we order a correction to the minute order and
abstract of judgment. In all other respects, the judgment is affirmed.
BACKGROUND
Prosecution Evidence
On October 23, 2013, Shasta County Sherriff’s Deputies Michael Nelson and
Caleb Macgregor conducted a probation search of defendant’s residence. Deputy
Macgregor entered the garage and found defendant with Nick Taylor and Douglas
Lamphers. He smelled a type of smoke that had a pungent odor not associated with
cigarettes. On the counter were straws and tinfoil with burn marks and residue, items
consistent with heroin use.
Deputy Macgregor detained and searched defendant, finding two baggies of
heroin and what appeared to be a marijuana bud. Tinfoil with burned residue that was
consistent with smoking heroin and/or other narcotics was found in a trash can in
defendant’s bedroom. In the alcove of a window in defendant’s room, Deputy
Macgregor found a storage container with marijuana packaged in a baggie, as well as
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2
a toot straw, a baggie containing heroin residue, and a plastic container with plastic
baggies. About five ounces of marijuana was found during the search. Based on his
training and experience, Deputy Macgregor concluded the marijuana and heroin were
possessed for the purpose of sale.
Defendant told Deputy Macgregor he was a heroin user who separated his heroin
into single-dose baggies to keep track of his consumption. He also claimed to have a
medical marijuana recommendation. As he was driving defendant to the station, Deputy
Macgregor overheard defendant tell Deputy Nelson that he sold heroin to fund his own
habit. In Deputy Macgregor’s experience, addicts will buy large quantities of the drug to
get a bulk purchase savings, and then sell some of the drug in smaller lots at a higher
price.
Deputy Nelson and other deputies conducted another search of defendant’s
residence on February 19, 2014. Deputy Nelson found tinfoil with burned residue of
either pills or heroin in defendant’s bedroom. The bedroom also had a Tupperware
container with 0.2 gram of crystal methamphetamine. A small, locked metal box
contained 0.235 gram of heroin, and 0.8 gram of heroin was in a contact lens case. Other
deputies searched defendant and found a baggie containing 1.5 gram of heroin. In
Deputy Nelson’s opinion, the heroin was possessed for sale. A large amount of cash was
found in a safe, but this was later determined to be proceeds from an insurance
settlement.
As he was being transported to jail, defendant told Deputy Nelson he used a gram
of heroin every day. He was “fronted” four grams of heroin every day, and would sell
what he did not use.
During the time between the two searches, defendant’s neighbors Jesseca Root and
Frank Hokema noticed unusual activity at defendant’s home. Root observed constant
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traffic going to defendant’s house. Hokema saw “quite a bit of activity,” as it was “like
living next to a drive-through at McDonald’s. There’s a constant flow of traffic that’s
constantly coming down.” Vehicles would park in front of defendant’s house and stay
for only a few minutes. People Hokema thought were “more familiar” would enter
defendant’s garage and sit there for awhile. Defendant set up tables in the garage where
visitors would sit.
Deputy Nelson testified as to the meaning of texts found on defendant’s cell
phone. A text sent to defendant, “[w]hat up G? Wanna burn? Got some cash,” meant the
sender wanted to smoke or burn something because he had money. A text sent later by
defendant asked, “how much was you looking for?” indicated he was awake and wanted
to know how much the person was talking about buying or selling. The answer, “[l]ike a
dub or 30. You at home? I’ll swing by,” meant the sender was looking for 0.2 or 0.3
grams of methamphetamine or heroin, although it could also refer to an amount of
money.
Deputy Nelson also testified regarding the contents of Facebook conversations
involving defendant’s account. On September 5, 2013, a message sent from defendant’s
account read, “I heard you been fucking up doing heroin and shit. Why[?]” After getting
a response, defendant’s account sent a message stating the sender “hustle[s] it out here,”
meaning he dealt heroin in the area. On September 1, 2013, defendant’s account received
the query, “What you need?” The reply was, “Some black,” a reference to heroin, and he
was ready to buy it once a week. A message he needed “a new connect,” that is, a new
drug supplier, was also sent through defendant’s account. Another message from
defendant’s account indicated the sender needed a new supplier quickly because he was
“almost out and [he] can’t afford losing [his] people,” as they would buy heroin from
another person.
4
The Defense
A defense investigator testified he was familiar with the location of defendant’s
house, and, after examining photographs of the area, he could not see defendant’s home
from Hokema’s property. The investigator also could not see the front of defendant’s
property from Root’s home.
The Pitchess Motion
Defendant filed a pretrial Pitchess motion. Counsel’s declaration in support of the
motion stated a primary defense to the maintaining a place for using or selling heroin and
possession of heroin for sale counts was that Deputy Nelson “provided false statements in
his report, more specifically, that Deputy Nelson fabricated admissions of [defendant]
with respect to drug sales.” Counsel asserted on information and belief defendant “never
admitted to selling heroin every day, nor did he specify that he was buying or being
fronted 4 grams of heroin every day, as is falsely stated in Deputy Nelson’s report. (See
Exhibit A, attached.)” The motion sought “the names and contact information of
individuals who have made complaints against Deputy Nelson for providing false
information in police reports.” Counsel alleged the information sought was material to
impeach Deputy Nelson’s testimony because it would show he provided “false
information in his police reports.”
Attached to the motion was Exhibit A, the report from Deputy Macgregor for the
October 2013 search. The report noted, after reading defendant his Miranda v. Arizona
(1966) 384 U.S. 436 [16 L.Ed.2d 694] warnings, Deputy Macgregor asked him why the
heroin found on defendant was in two separate baggies. Defendant said he kept the
packages separate so he could track how much heroin he used. Defendant also said he
had a medical recommendation for the marijuana and it was packaged separately because
each package contained separate types of marijuana. While Deputies Macgregor and
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Nelson transported defendant and Lamphers to jail, defendant told Deputy Nelson he had
been selling heroin. Defendant “would not say how long he had been selling heroin but
did state he was selling to help supply his own heroin habit.”
County counsel filed an opposition asserting the motion should be denied because
the declaration was “merely a series of conclusory denials,” and did not provide an
“alternate version of the facts or a plausible scenario justifying an in camera review of the
Deputy’s records.”
At the hearing on the motion, the trial court said, “there appears to me to be an
insufficient declaration on the statement which provides a plausible alternative
explanation.” In response to the tentative ruling, defense counsel said, “I tried to
streamline my declaration. The situation here is pretty simple, we have a couple of
officers who are involved in two cases who have said that [defendant] made admissions
to critical information with respect to the charges here. [Defendant] denies that. [¶] I
could supplement my declaration by saying when [defendant] was being driven to jail
and Deputy Macgregor said that he made an admission -- a spontaneous admission of
sales, he did not. Rather than simply saying as I do in my declaration that was fabricated
and he didn’t say it or any other case, I could say he was or was not informed of his
Miranda rights and spoke to Deputy Nelson he had a conversation and he never said that
he admitted to sales and that was fabricated. [¶] So I believe there’s good cause.
Perhaps I need to add a few more statements to contextualize it, but it’s a pretty simple
issue--.”
The court replied, “Well, contextualizing it [to] say I was in the back of a police
car and he made a spontaneous statement of something else I don’t think satisfies the
requirement that an alternative plausible information contrary to the allegations needs to
be set forth within the declaration” based on information and belief. When defense
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counsel asked what type of “alternative plausible explanation” comes in, the court replied
the declaration came squarely within People v. Sanderson (2010) 181 Cal.App.4th 1334
(Sanderson). After citing another case where a denial of the officer’s statement was
sufficient, the trial court declined counsel’s offer for an oral supplement of the
declaration, “mainly because I want there to be an intelligent opposition or reply to that,
if that is required.” It then denied the motion without prejudice. Defendant did not file
another Pitchess motion or a supplement to the original Pitchess motion.
DISCUSSION
I
Denial of Pitchess Motion
Defendant contends the trial court erred in finding he had not established good
cause for an in camera review of Deputy Nelson’s personnel record for citizen complaints
that he provided false information. We conclude the trial court did not abuse its
discretion in denying the Pitchess motion.
To balance a defendant’s right to discovery and a peace officer’s right to privacy,
the Pitchess procedures provide the defense must first show “good cause” for discovery
of peace officer records that triggers an in camera hearing by the trial court to determine
whether any information in the records should be disclosed. (See City of Santa Cruz v.
Municipal Court (1989) 49 Cal.3d 74, 81-84; Evid. Code, §§ 1043-1047, Pen. Code,
§§ 832.7, 832.8.)
The defense must show “good cause for the discovery or disclosure sought, setting
forth the materiality thereof to the subject matter involved in the pending litigation.”
(Evid. Code, § 1043, subd. (b)(3).) Our Supreme Court has described this as a “relatively
low threshold” and a “relatively relaxed” standard. (City of Santa Cruz, supra, 49 Cal.3d
at pp. 83-84.)
7
“To show good cause as required by [Evidence Code] section 1043, defense
counsel’s declaration in support of a Pitchess motion must propose a defense or defenses
to the pending charges. The declaration must articulate how the discovery sought may
lead to relevant evidence or may itself be admissible direct or impeachment evidence
[citations] that would support those proposed defenses. These requirements ensure that
only information ‘potentially relevant’ to the defense need be brought by the custodian of
the officer’s records to the court for its examination in chambers. [Citations.]” (Warrick
v. Superior Court (2005) 35 Cal.4th 1011, 1024.)
The defense need only describe a “plausible factual foundation” for the claim of
“specific police misconduct that is both internally consistent and supports the defense
proposed to the charges.” (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1025-
1026.) This allows “courts to apply common sense in determining what is plausible, and
to make determinations based on a reasonable and realistic assessment of the facts and
allegations.” (People v. Thompson (2006) 141 Cal.App.4th 1312, 1318-1319
(Thompson).) We review the trial court’s denial of discovery of information from police
personnel files for an abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th
970, 992.)
The trial court based its finding defendant failed to establish good cause on
Sanderson. Sanderson involved a prosecution for criminal threats where two police
officers heard the defendant deliver a threat to the victim in a telephone conversation.
(Sanderson, supra, 181 Cal.App.4th at pp. 1336-1337.) The Pitchess motion sought
discovery of the officers’ personnel records for matters pertaining to dishonesty or
falsifying police reports. (Sanderson, at p. 1338.) Defense counsel’s declaration stated
defendant denied making the statement attributed to him and records of dishonesty and
8
fabrication by the officers would be relevant to disprove the statements had been made.
(Ibid.) There was no police report attached to the motion. (Ibid.)
The Court of Appeal in Sanderson noted the “defendant simply denied making the
statement attributed to him; he did not deny making the phone call or engaging in a
telephonic conversation” when “the police were present at the house.” (Sanderson,
supra, 181 Cal.App.4th at p. 1340.) It found the defendant’s claim he never made the
incriminating remarks attributed to him in a testifying officer’s report was not enough to
establish good cause, at least not without a plausible “ ‘alternate version of the facts.’ ”
(Id. at pp. 1340-1341.) Since the “[d]efendant failed to present ‘an alternate version of
the facts’ regarding the reason and nature of his telephonic exchange,” it was within the
trial court’s discretion to determine that “defendant’s version of events was not plausible
‘based on a reasonable and realistic assessment of the facts and allegations.’ [Citation.]”
(Id. at p. 1341.)
The Sanderson court found Thompson to be “particularly instructive.”
(Sanderson, supra, 181 Cal.App.4th at p. 1341.) Thompson held the defendant “failed to
show good cause for the requested discovery because he did not present a specific factual
scenario that [was] plausible when read in light of the pertinent documents and
undisputed circumstances. [Citation.]” (Thompson, supra, 141 Cal.App.4th at p. 1316.)
There, the police claimed the defendant gave an undercover officer cocaine base in
exchange for two prerecorded $5 bills. (Id. at p. 1315.) The officer was wired during the
transaction, and several other officers who were part of the buy team watched and
listened to the transaction. (Ibid.) The defendant was arrested by the other officers after
the exchange was completed, and the prerecorded bills were found on his person. (Ibid.)
Defense counsel moved for discovery of the officers’ personnel records, stating in a
declaration the defendant did not sell drugs to the officer and the officers did not recover
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any buy money from the defendant. (Id. at p. 1317.) The declaration in support of the
motion claimed the defendant was in an area where the officers were making arrests, and
the officers fabricated the events when they realized he had a prior criminal history.
(Ibid.)
The Thompson court concluded the defendant’s factual scenario was not plausible,
“because it does not present a factual account of the scope of the alleged police
misconduct, and does not explain his own actions in a manner that adequately supports
his defense. Thompson, through counsel, denied he was in possession of cocaine or
received $10 from Officer Saragueta. But he does not state a nonculpable explanation for
his presence in an area where drugs were being sold, sufficiently present a factual basis
for being singled out by the police, or assert any ‘mishandling of the situation’ prior to
his detention and arrest. Counsel’s declaration simply denied the elements of the offense
charged.” (Thompson, supra, 141 Cal.App.4th at p. 1317.)
We conclude the situation here is similar to Sanderson, supra, 181 Cal.App.4th
1334 and Thompson. The declaration supporting defendant’s motion simply denied
defendant made certain incriminating statements to Deputy Nelson and concludes
Deputy Nelson fabricated them. The attached police report, which came from Deputy
Macgregor rather than Deputy Nelson, does not relate any statement from Deputy Nelson
regarding what defendant said. It does relate Deputy Macgregor heard defendant admit
to Deputy Nelson he sold heroin to help support his heroin habit. Defendant’s Pitchess
motion did not seek discovery of Deputy Macgregor’s records and did not assert he
fabricated this statement. As in Sanderson, supra, 181 Cal.App.4th 1334 and Thompson,
supra, 141 Cal.App.4th 1312, the declaration presented no factual basis explaining how
10
Deputy Nelson fabricated the admission Deputy Macgregor heard and related in his
report.3
While defendant does not have to give a detailed or even credible factual account
supporting the requested discovery, he must give some plausible factual account. Other
than his denial of making the statement, the only facts are found in Deputy Macgregor’s
report. This report does not contain any facts that would support discovery as to Deputy
Nelson’s personnel records. Although defense counsel offered to orally amend this
deficiency at the Pitchess hearing, the trial court declined but gave defendant leave to file
a new motion. Counsel did not file a new motion. We conclude the trial court did not
abuse its discretion by denying this factually deficient Pitchess motion.
II
Sufficiency of the Evidence
Defendant contends there is insufficient evidence to support his conviction for
furnishing heroin. We conclude substantial evidence supports the furnishing heroin
conviction.
“ ‘To determine sufficiency of the evidence, we must inquire whether a rational
trier of fact could find defendant guilty beyond a reasonable doubt. In this process we
must view the evidence in the light most favorable to the judgment and presume in favor
3 Deputy Nelson’s trial testimony relating the admissions from defendant (that the
declaration asserted was fabricated) is not relevant to our review of the trial court’s
ruling: “We normally review a trial court’s ruling based on the facts known to the trial
court at the time of the ruling. [Citation.]” (People v. Cervantes (2004) 118 Cal.App.4th
162, 176 [trustworthiness of statement].) A trial court considering a Pitchess motion
must “apply common sense in determining what is plausible, and to make determinations
based on a reasonable and realistic assessment of the facts and allegations.” (Thompson,
supra, 141 Cal.App.4th at pp. 1318-1319.) When we review such determination for an
abuse of discretion, we must consider the “facts and allegations” as they were presented
to the trial court at the time of the motion.
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of the judgment the existence of every fact the trier of fact could reasonably deduce from
the evidence. To be sufficient, evidence of each of the essential elements of the crime
must be substantial and we must resolve the question of sufficiency in light of the record
as a whole.’ [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 387.)
It is unlawful to furnish a controlled substance. (§ 11352, subd. (a).) Section
11016 provides: “ ‘Furnish’ has the same meaning as provided in [former] Section
4048.5 of the Business and Professions Code.” Business and Professions Code section
4048.5 was repealed and replaced by Business and Professions Code section 4026 (Stats.
1996, ch. 890, §§ 2, 3, pp. 4859-4865), which provides: “ ‘Furnish’ means to supply by
any means, by sale or otherwise.”4
Defendant says the evidence does not support a finding that what Taylor and
Lamphers appeared to have smoked in the garage was heroin, and even if it was heroin,
there was no evidence defendant furnished it to them. He is wrong.
During the August 2013 search, Deputy Macgregor saw defendant, Taylor, and
Lamphers in defendant’s garage. The evidence shows heroin was in defendant’s home;
he had heroin in his possession and there was heroin residue in another room. The
presence of the pungent smoke in the garage supports an inference something other than
cigarettes had been smoked there recently. Deputy Macgregor gave an expert opinion
that the straws and tinfoil with residue in the garage were consistent with heroin use that
was further supported by the presence of tinfoil with heroin residue elsewhere in
defendant’s home. The jury could therefore reasonably infer heroin had been smoked in
the garage and it had been smoked by the three occupants found there. Since the garage
was in defendant’s home and since defendant had heroin on his person and admitted
4 Section 11016 has not been amended by the Legislature to reflect the change in the
Business and Professions Code section.
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using and selling the drug, the jury could also reasonably infer defendant furnished the
heroin Taylor and Lamphers smoked in the garage with him.
III
Penal Code Section 654
The trial court imposed consecutive terms for the furnishing heroin and
maintaining a place for selling or using heroin counts. Defendant contends the sentence
for the maintaining count should have been stayed pursuant to Penal Code section 654
because the crimes shared a single intent, furnishing heroin to others. We conclude Penal
Code section 654 did not bar punishment for both the furnishing heroin and maintaining a
place counts.
In relevant part, Penal Code section 654 provides: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” (Pen. Code, § 654,
subd. (a).)
“[I]t is well settled that [Penal Code] section 654 applies not only where there was
but one act in the ordinary sense, but also where there was a course of conduct which
violated more than one statute but nevertheless constituted an indivisible transaction.
[Citation.] Whether a course of conduct is indivisible depends upon the intent and
objective of the actor. If all the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for more than one. [Citation.]”
(People v. Perez (1979) 23 Cal.3d 545, 551.) “It is defendant’s intent and objective, not
the temporal proximity of his [or her] offenses, which determine whether the transaction
is indivisible. [Citations.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) “A trial
court’s implied finding that a defendant harbored a separate intent and objective for each
13
offense will be upheld on appeal if it is supported by substantial evidence. [Citation.]”
(People v. Blake (1998) 68 Cal.App.4th 509, 512.)
In People v. Moseley (2008) 164 Cal.App.4th 1598 (Moseley), the defendant, who
was convicted of possession of methamphetamine for sale (§ 11378) and maintaining a
place for the use or sale of controlled substances, argued sentence on the maintaining
count should have been stayed pursuant to Penal Code section 654 because the two
crimes came from a single criminal objective (Moseley, at pp. 1599-1600). The Court of
Appeal rejected the contention, finding: “Moseley’s possession of the nine bags of
methamphetamine for the purpose of sale was comparable to a store owner’s possession
of his or her current inventory. The owner’s objective in possessing it is to sell it. The
owner’s objective in maintaining the store, however, is different from and independent of
this intent. He or she intends to provide a place for selling his or her future inventory on
an ongoing basis, regardless of whether the current inventory is ever sold or not. The
evidence showed that Moseley maintained the apartment with the intent of continuously
providing a location for meeting as many as four or five buyers a day and selling
methamphetamine to them. This was independent of the objective of selling the nine
particular bags in his possession on the day of his arrest. Therefore, we conclude that
[Penal Code] section 654 did not require the court to stay the sentence for either offense.
[Citations.]” (Id. at p. 1604.)
As in Moseley, supra, 164 Cal.App.4th 1598, the trial court here could reasonably
conclude defendant’s objective in the maintaining offense is to have an ongoing base of
operations to sell heroin. The evidence and verdicts show defendant sold heroin; he
admitted so much to Deputy Nelson, texts and Facebook messages showed he sold the
drug over time, and he was convicted of possession of heroin for sale. There is no
evidence defendant sold the heroin that was smoked in the garage and formed the basis of
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the furnishing conviction. The trial court could therefore conclude the intent behind the
furnishing count was tied to personal use; defendant chose to share the heroin he was
smoking in his garage with the two other people. The trial court could also reasonably
conclude the intent behind the maintaining count was to perpetuate an ongoing base of
operations for the sale of heroin.
This conclusion is supported by the pleadings; the maintaining count was alleged
to have been committed between October 23, 2013 and February 19, 2014, while the
furnishing count was alleged to have happened on October 23, 2013. The evidence
also shows the maintaining offense continued long after the crime of furnishing was
complete. The texts and Facebook messages happened after the furnishing count, and
the February 2014 search showed defendant maintained a place for heroin sales up until
then.
Since defendant entertained different intents for the maintaining and furnishing
counts, Penal Code section 654 did not bar sentencing defendant on both counts.
IV
Correction of Minute Order and Abstract of Judgment
The trial court imposed a six-year four-month prison term at sentencing.
Defendant points out the August 27, 2015 minute order and the abstract of judgment
reflect a six-year eight-month term and asks us to correct both. The Attorney General
agrees.
When there is a discrepancy between the oral pronouncement of a sentence and
the written order, the criminal court’s oral pronouncement controls because it “constitutes
the rendition of judgment,” whereas “the written document is ministerial.” (People v.
Freitas (2009) 179 Cal.App.4th 747, 750, fn. 2; accord, People v. Jones (2012)
54 Cal.4th 1, 89 [oral pronouncement is judgment, and written abstract of judgment does
15
not add to or modify judgment as orally pronounced].) Therefore, the minute order and
the abstract of judgment must be corrected to reflect the oral pronouncement of the trial
court. (People v. Zackery (2007) 147 Cal.App.4th 380, 388, 393 [correction of abstract
of judgment and corresponding minute order to reflect oral pronouncement by trial
court].)
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected minute
order and corrected abstract of judgment reflecting a six-year four-month state prison
term. A certified copy of the corrected abstract of judgment shall be forwarded to the
Department of Corrections and Rehabilitation.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
MAURO, J.
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