People v. Portillo CA2/7

Filed 4/13/21 P. v. Portillo CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B302192

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA099065)
v.

FELIPE JAIME PORTILLO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Affirmed.
Vanessa Place, 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, Senior
Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen,
Deputy Attorneys General, for Plaintiff and Respondent.

_______________________
 Felipe Jaime Portillo appeals from a judgment entered
after a jury convicted him of two counts of lewd acts upon a child
and two counts of continuous sexual abuse of a child and found
true the multiple victim allegations. Portillo contends the trial
court abused its discretion in denying his request to discharge his
retained counsel after trial had commenced. He also asserts the
court abused its discretion in denying his request made in the
middle of his sentencing hearing to represent himself. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Information and Arraignment
The information charged Portillo with committing a lewd
act upon Kayla P., a 14- or 15-year-old child (Pen. Code,1 § 288,
subd. (c)(1); count 1); committing a lewd act upon Alexis P., a
child under the age of 14 (§ 288, subd. (a); count 2); and
continuous sexual abuse of Angelica S. (count 3) and Calista P.
(count 4), each of whom was a child under the age of 14 (§ 288.5,
subd. (a)). The information specially alleged as to counts 2, 3,
and 4 that Portillo committed the offenses against more than one
victim (§ 667.61, subds. (b), (e) & (j)(2)). Portillo pleaded not
guilty and denied the allegations.
At his arraignment on April 11, 2019, Portillo substituted
E.J. Montanez in place of his former retained attorney. After
multiple continuances, the trial was set for September 5, 2019.

1 All undesignated statutory references are to the Penal
Code.

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B. Portillo’s Request To Discharge His Retained Counsel
On September 5, 2019 the trial court heard evidentiary
motions, then confirmed counsel were ready to start jury
selection. After a recess, Montanez informed the court Portillo
had “changed his mind one more time” and wanted a court trial.2
The court noted it had 60 prospective jurors outside the
courtroom who were ready for jury selection. The court advised
Portillo that if he waived his right to a jury trial, the court would
decide the question of guilt. Portillo stated, “I understand,
Sir. . . . I have a concern about my defense. That’s the only
concern that I have.” The court responded, “That’s a different
matter altogether.” Portillo stated, “I’m ready to go to trial, but
I’m not so sure my counsel is ready for me.” The court asked
Montanez whether he was ready to proceed to trial, to which
Montanez responded, “Yes, I am, Your Honor, I’m ready to
proceed right now, either with a jury or with a court trial.”
Portillo then stated, “I [will] stick to the jury trial, Your Honor.”
The prospective jurors were brought into the courtroom for jury
selection.
The jurors were sworn in on Friday, September 6. After
the trial court provided preliminary instructions to the jury, the
trial was recessed until Monday, September 9 at 10:30 a.m. On
September 9, before the jurors entered the courtroom, Portillo
attempted to address the trial court directly. The court
instructed Portillo to direct his comments to his attorney and
cautioned Portillo that he would be removed from the courtroom

2 It appears from the record that the court discussed with
counsel and Portillo the prior day whether Portillo wanted to
waive his right to a jury trial.

3
if he continued to address the court directly and make distracting
gestures.
The court asked counsel whether they were ready to
proceed with opening statements. Before they could respond,
Portillo stated, “I do not have an attorney. I request another
attorney.” Portillo explained, “I want to fire Mr. Montanez, Your
Honor. Due process . . . is not being done to me, my
constitutional rights . . . .” The court observed Portillo had been
“a distraction or distracted the court for several days now,” and
he had engaged in “obstructionist” conduct and was “simply
trying to derail these proceedings at this point.”3 The court
reminded Portillo of his “back and forth on waiving a jury, which
almost became comical at one point, the sort of games that you
were playing.” The court warned Portillo, “If you continue to be a
distraction, you will be removed from the courtroom.” Following
a further colloquy, Portillo repeated, “I want to fire [Montanez].
This is not my attorney—.” The court interrupted, “Sir, you’re
once again speaking to the court. You are not speaking to your
attorney.”
When the clerk advised the trial court that all jurors were
assembled, Portillo asserted, “I would like to be removed from the
courtroom.” When the court asked Portillo whether he wanted to
voluntarily absent himself from the courtroom, Portillo answered,
“No, forcibly. I protest this man to be my lawyer; under protest, I
do not wish to continue with him. My rights have been violated
by him, my constitutional rights . . . .” The court reiterated its
belief Portillo was intentionally trying to delay the proceedings,

3 The record does not include transcripts from the
proceedings held between the arraignment and the first day of
trial.

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noting Portillo continued to address the court and “gesture[d]
with his hands in the most bizarre way to the court.” When the
court inquired of Portillo whether he could behave in front of the
jury, Portillo reiterated, “I cannot stay in this trial, because I
don’t have an attorney. I am under protest. I’d object to my
attorney. I cannot proceed with this man.”
The court stated it was going to bring in the jury and
asked Montanez for his view on removal of Portillo from the
courtroom. Montanez responded, “I don’t know how he will act.
The only thing I can tell the court is that I’m ready and willing to
try the case. I’ve been preparing for this for months. I know this
case inside and out, and he has just had some difference of
opinions with me.” The court asked Portillo whether he wanted
to be present in the courtroom, and Portillo answered yes. At
this point the jury was brought in.

C. The Trial
The trial proceeded with opening statements and witness
testimony. Kayla, Portillo’s grandniece, testified on the morning
of September 9. She was 15 years old at the time of trial. Kayla
described an incident that occurred in August 2018, when she
was 14 years old. She was at Portillo’s home with her cousins
when Portillo grabbed her by the face, kissed her, and made a
sexual comment to her. Portillo’s granddaughter Angelica.
testified on the afternoon of September 9. She was 13 years old
at the time of trial. She described sexual abuse by Portillo
starting when she was six or seven years old, including Portillo
putting his penis in her mouth and touching her inappropriately.

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Portillo’s daughter Angie (Angelica’s mother) also testified on
September 9 about Portillo’s sexual abuse of her as a child.4
The next day Portillo’s granddaughters Alexis and Calista
testified about inappropriate touching and other sexual conduct
by Portillo while they were growing up. Alexis and Calista were
15 and 20 years old, respectively, at the time of trial.
Portillo and his wife Brenda testified in his defense.
Portillo denied he had ever sexually abused the young women.
He explained he and his family were very affectionate. Further,
Angie always wanted to be the “center of attraction,” she would
often “make up stories,” and she exaggerated and lied to receive
attention. Brenda similarly testified that Angie tends to
exaggerate.
The parties rested on September 12. After instructions and
closing arguments, the jury commenced deliberations. The next
day the jury found Portillo guilty on all counts and found the
multiple victim allegations to be true. Portillo waived time, and
the court set October 29, 2019 for the sentencing hearing.

D. Portillo’s Post-conviction Request for Self-representation
At the October 29, 2019 sentencing hearing, the prosecutor
and Montanez stated they were prepared to proceed with
sentencing. The prosecutor read victim impact statements from
Calista, Angelica, and the mother of Calista and Alexis. Kayla,
her mother Nicole P., and Angie read their own victim impact
statements. The People submitted on their sentencing
memorandum. Montanez requested the court exercise its

4 Angie’s testimony was admitted pursuant to Evidence Code
section 1108. Portillo does not challenge the admission of Angie’s
testimony on appeal.

6
discretion to “sentence Mr. Portillo concurrently whenever the
court can.”
After Montanez submitted on sentencing, Portillo requested
to address the court. He stated, “I’d like to exercise the right to
go pro per so I can address the court myself. There’s some new
evidence I’d like to introduce. I’d like to go pro per and ask for a
retrial.” The court responded, “All right. . . . In regard to
sentencing it’s a little late for that, sir. . . . Actually you’ve gone
back and forth on your request, so this has been an ongoing
problem sir.” Portillo explained his attorney was refusing to file
a motion for new trial. In response to an inquiry by the court,
Montanez said he was unaware of any new evidence that was not
known or introduced at trial. The court stated, “We’ve had this
continuing problem from day one, as you know . . . . [¶] . . . [¶]
To me it’s always been a tactic on your part, an obstructionist
tactic on your part to delay the matter, and that’s what’s
happening at this time as well, so your request to go pro per is
denied.” Portillo repeated he wanted to move for a new trial.
The court responded it had already denied Portillo’s request to
represent himself, and Portillo would be removed from the
courtroom if he continued to address the court directly. The court
took a 10-minute recess.
When the proceedings resumed, the court acknowledged
Portillo’s right to represent himself and that this was his first
request to do so, but it stated the request was untimely. The
court asked Portillo why he waited so long to request to represent
himself. Portillo answered that Montanez had not represented
him adequately from the beginning, stating, “Nobody has told my
story.” The court responded that Portillo had an opportunity to
provide his side of the story through his testimony, but the jury

7
did not believe him. Portillo affirmed that was “correct,” but it
was because Montanez had failed to ask the right questions.
After further questioning by the court, Portillo stated he
needed an investigator to talk to two of his daughters, Kristy and
Jacqueline, who were present during the trial but did not testify.
According to Portillo, Kristy’s and Jacqueline’s testimony would
negate Angie’s testimony regarding the “uncharged charge that
was used here against me.” However, Portillo indicated he could
not provide any details about their proposed testimony without
reviewing the transcript of the trial testimony. Upon further
inquiry from the court, Portillo stated Kristy “will contradict
everything that [Angie] said about the things that happened
throughout her life. . . . She will contradict just about every
testimony that they gave.” Jacqueline would similarly
“contradict the testimony that was given here in the
court. . . .” The court expressed its belief that Portillo was
“playing games” and “making up things again” and the purported
new evidence was simply a “rehash [of] a defense that was
already put on in front of the jury.” The court again asked
Montanez if there were grounds for moving for a new trial, to
which Montanez responded, “There was really no legal basis for a
motion for a new trial. There’s no new evidence that was not
introduced, was not known.” In response to the court’s further
inquiry, Portillo stated if he was granted pro. per. status, he
would need a continuance of between 30 and 60 days from his
receipt of a trial transcript.
The court then closed the courtroom to talk further with
only Portillo and Montanez present. Following the ex parte
proceeding, the court denied Portillo’s request to represent
himself, finding the request—made in the middle of the

8
sentencing hearing—was untimely. The court explained Portillo
failed to describe the new evidence with any specificity, only
generally alluding to the fact his two daughters would present
further testimony in his defense.
The trial court sentenced Portillo to 32 years to life in
prison. Portillo timely appealed.

DISCUSSION

A. A Defendant’s Request To Discharge Retained Counsel
1. Governing law
An nonindigent defendant’s right to counsel in the Sixth
Amendment of the United States Constitution generally includes
the right to choose who will represent him or her. (United States
v. Gonzalez-Lopez (2006) 548 U.S. 140, 144; People v. Maciel
(2013) 57 Cal.4th 482, 512 (Maciel); People v. Verdugo (2010)
50 Cal.4th 263, 310-311 (Verdugo).) A nonindigent defendant has
the right “to discharge his retained attorney, with or without
cause.” (People v. Ortiz (1990) 51 Cal.3d 975, 983; accord, Maciel,
at p. 512 [a defendant’s right to counsel “‘reflects not only a
defendant’s choice of a particular attorney, but also his decision
to discharge an attorney whom he hired but no longer wishes to
retain.’”]; Verdugo, at p. 311 [same].) However, the authority to
discharge retained counsel is not absolute. (Maciel, at p. 512;
Verdugo, at p. 311.) The defendant’s right “‘is necessarily
[limited by] the countervailing state interest against which [this]
right provides explicit protection: the interest in proceeding with
prosecutions on an orderly and expeditious basis, taking into
account the practical difficulties of “assembling the witnesses,
lawyers, and jurors at the same place at the same time.”’” (Ortiz,

9
at pp. 983-984; accord, People v. Lopez (2018) 22 Cal.App.5th 40,
47.)
“‘The trial court has discretion to “deny such a motion if
discharge will result in ‘significant prejudice’ to the defendant
[citation], or if it is not timely, i.e., if it will result in ‘disruption of
the orderly processes of justice.’”’” (Maciel, supra, 57 Cal.4th at
p. 512; accord, Verdugo, supra, 50 Cal.4th at p. 311.) “The trial
court, however, must exercise its discretion reasonably: ‘a myopic
insistence upon expeditiousness in the face of a justifiable
request for delay can render the right to defend with counsel an
empty formality.’” (People v. Ortiz, supra, 51 Cal.3d at p. 984; see
Maciel, at p. 513 [in evaluating the timeliness of a motion to
discharge, “the trial court considers the totality of the
circumstances”]; People v. Keshishian (2008) 162 Cal.App.4th
425, 429 [trial court should “‘balance the defendant’s interest in
new counsel against the disruption, if any, flowing from the
substitution’”].) We review the trial court’s denial of a request to
discharge retained counsel for an abuse of discretion. (Lopez,
supra, 22 Cal.App.5th at p. 47; see Verdugo, at p. 311 [finding no
abuse of discretion].)

2. The trial court did not abuse its discretion in denying
Portillo’s request to discharge his retained counsel
Portillo contends the trial court erred in denying his
request to discharge Montanez because the request was timely
and granting it would have had a minimal impact on the
proceedings. Portillo also argues the court improperly based its
decision on Portillo’s “obstructionist” behavior and not on the
actual disruption the request would have caused. The trial court
did not abuse its discretion.

10
 Portillo’s request to discharge Montanez was untimely.
Although a request made on the first day of trial is not
“necessarily untimely” (People v. Lara (2001) 86 Cal.App.4th 139,
163), Portillo made his request after the trial had commenced.5
(See Perryman v. Superior Court (2006) 141 Cal.App.4th 767, 776
[trial begins when jury is sworn in and jeopardy attaches].) The
trial court properly considered the untimeliness of Portillo’s
request as a “significant factor” in its denial. (See People v.
Courts (1985) 37 Cal.3d 784, 792 & fn. 4 [contrasting defendant’s
request to discharge his attorney more than a week before trial
with other courts’ denials of “eve-of-trial, day-of-trial, and second-
day-of-trial” requests where the untimeliness was “a significant
factor” justifying the denial absent “compelling circumstances to
the contrary”].)
Further, contrary to Portillo’s contention, granting his
request to discharge Montanez would have had a significant
impact on the trial and witnesses. By the time of Portillo’s
request on September 9, the jurors had returned to court and the
prosecution’s witnesses were ready to testify. Two of the minor
victims, 15-year-old Kayla and 13-year-old Angelica, testified
that day, as well as Angie. The next day 15-year-old Alexis and
20-year-old Calista testified.6 At no time did Portillo suggest he

5 Although Portillo expressed a concern about Montanez’s
representation before jury selection commenced (on September 5),
he did not request at that time to discharge his attorney. Portillo
does not contend on appeal that his comments prior to jury
selection constituted a timely request to discharge his attorney.
6 Further, as section 288, subdivision (d), provides, in sexual
abuse cases “the court shall consider the needs of the child
victim” and take steps “to prevent psychological harm to the child
victim . . . resulting from participation in the court process.”

11
had another attorney ready to try the case, nor did he state how
much time he would need to secure new counsel. Although this
was not a complex case, a new attorney would have needed
significant time to interview witnesses and prepare for trial.
Under these circumstances, granting Portillo’s request would
likely have resulted in the loss of many jurors (and perhaps a
mistrial) and required the minor victims and other witnesses to
return to court, disrupting “the orderly processes of justice.”7
(Maciel, supra, 57 Cal.4th at p. 512 [trial court did not abuse its
discretion in denying defendant’s motion to discharge retained
counsel made six weeks before trial where defendant had not
identified substitute counsel and new counsel would need
significant time to prepare for trial]; see People v. Dowdell (2014)
227 Cal.App.4th 1388, 1412 [trial court did not abuse its
discretion in denying defendant’s request on eighth day of trial to
discharge retained counsel because it impliedly found that

Here, three of the four victims were 15 years old or younger and
came to the trial court to recount the sensitive details of Portillo’s
sexual abuse.
7 To the extent the trial court based its decision on Portillo’s
earlier indecisiveness about whether to proceed with a jury or
court trial, we agree with Portillo this was not a proper
consideration in deciding whether to grant Portillo’s request to
discharge his attorney given the significance of a defendant’s
decision whether to waive his or her constitutional right to a jury
trial. (See People v. Collins (2001) 26 Cal.4th 297, 305 [the
decision to waive the right to a jury trial must be “‘made with a
full awareness both of the nature of the right being abandoned
and the consequences of the decision to abandon it’”].) But, as
discussed, other appropriate factors supported the court’s
decision, including the impact on the trial and witnesses.

12
granting a continuance to retain new counsel could cause an
unreasonable disruption from loss of too many jurors]; People v.
Keshishian, supra, 162 Cal.App.4th at p. 29 [trial court did not
abuse its discretion in denying defendant’s motion to discharge
retained counsel on first day of trial after case had been pending
for two-and-a-half years, witnesses were scheduled, and
defendant had not retained or identified new counsel].)
Portillo’s reliance on People v. Munoz (2006)
138 Cal.App.4th 860 is misplaced. There, the Court of Appeal
concluded the trial court abused its discretion in denying
defendant’s motion to discharge his retained attorney 40 days
after the defendant’s conviction and nine days before his
sentencing hearing. (Id. at pp. 844, 849.) The court explained
the trial lasted only two days and was not complicated, so it
would not take “an inordinate amount of time” for a new attorney
to decide whether to file a motion for new trial. (Id. at p. 849.) In
contrast to Munoz, the jury here had been empaneled and any
new attorney (once retained) would have needed to prepare for
trial, not simply review the record for the purpose of filing a
motion for new trial. The other cases relied on by Portillo where
the defendants sought to discharge their retained counsel on the
day set for trial are also distinguishable. (See People v. Lopez,
supra, 22 Cal.App.5th at p. 48 [trial court abused its discretion in
denying defendant’s motion to discharge retained counsel on date
set for trial where defendant was dissatisfied with
representation, case was two years old, it was not clear trial
would proceed, and the prosecutor did not object to the request];
People v. Lara, supra, 86 Cal.App.4th at pp. 162-163 [trial court
abused its discretion in denying defendant’s request to discharge
retained counsel on first day of trial where attorney did not

13
appear prepared, defendant made request “at the first possible
opportunity,” and prosecutor did not object to motion as
untimely].)

B. A Defendant’s Right to Self-representation
1. Governing law
A defendant has a constitutional right to self-
representation if his or her request is timely and asserted
unequivocally. (Faretta v. California (1975) 422 U.S. 806, 835;
accord, People v. Jenkins (2000) 22 Cal.4th 900, 959.) “‘When “a
motion to proceed pro se is timely interposed, a trial court must
permit a defendant to represent himself upon ascertaining that
he has voluntarily and intelligently elected to do so, irrespective
of how unwise such a choice might appear to be.”’” (People v.
Butler (2009) 47 Cal.4th 814, 824; accord, People v. Dent (2003)
30 Cal.4th 213, 217.) A post-conviction motion for self-
representation may be timely if brought a reasonable time before
sentencing. (See People v. Miller (2007) 153 Cal.App.4th 1015,
1023-1024 [trial court erred in denying defendant’s timely
request to represent himself made after the jury verdict and two
months before the sentencing hearing]; cf. People v. Doolin (2009)
45 Cal.4th 390, 455 [defendant’s motion on the day of sentencing
to represent himself was untimely and subject to trial court’s
discretion].)
If a defendant’s motion to proceed pro. per. is untimely,
self-representation is no longer a matter of right and instead
rests within the court’s discretion. (People v. Jenkins, supra,
22 Cal.4th at p. 959; People v. Windham (1977) 19 Cal.3d 121,
129 (Windham).) In ruling on an untimely request for self-
representation, the court “shall inquire sua sponte into the

14
specific factors underlying the request thereby ensuring a
meaningful record in the event that appellate review is later
required.” (Windham, at p. 128.) Among the factors to be
considered are “‘the quality of counsel’s representation of the
defendant, the defendant’s prior proclivity to substitute counsel,
the reasons for the request, the length and stage of the
proceedings, and the disruption or delay which might reasonably
be expected to follow the granting of such a motion.’” (Jenkins, at
p. 959; accord, Windham, at p. 128.) We review the trial court’s
denial of a motion for self-representation for an abuse of
discretion. (Jenkins, at p. 962.)

2. The trial court did not abuse its discretion in denying
Portillo’s request for self-representation
Portillo requested to represent himself at the end of the
sentencing hearing, after the presentation of victim impact
statements and after both counsel had submitted on sentencing.
Portillo’s attorney had urged the trial court to impose concurrent
sentences on the four counts to the extent possible. Portillo
contends the trial court abused its discretion in denying his
request because the Windham factors were in his favor: Portillo
had conflicts with his attorney from the beginning of his
representation; Portillo possessed new evidence he wanted to
present to the court in a motion for new trial; and Portillo
proposed a reasonable 30- to 60-day continuance to file the
motion. There was no abuse of discretion.
Because Portillo did not request to represent himself within
a reasonable time before sentencing, his request was untimely
and subject to the court’s discretion. (See People v. Doolin, supra,
45 Cal.4th at p. 455.) Although the court did not hold any

15
hearings between September 13, 2019 (when the jury rendered
its verdict) and October 29, 2019 (the date of the sentencing
hearing), Portillo could have made a written request to represent
himself or made a request through his attorney during the six
weeks leading up to his sentencing hearing. Instead, Portillo
made his request at the conclusion of the sentencing hearing, just
before the trial court pronounced its sentence.
With respect to the Windham factors, this was Portillo’s
first request to represent himself. Further, he stated the basis
for his request was to file a motion for new trial, which his
attorney refused to file. However, when pressed by the trial court
to disclose the new evidence that would support his motion,8
Portillo only vaguely asserted his two daughters, Kristy and
Jacqueline, would testify and cast doubt on the veracity of
Angie’s testimony regarding the uncharged sex offenses. Portillo
could not point to any specific testimony Kristy and Jacqueline
would present or any other evidence that would contradict the
testimony of the four named victims. And any testimony Kristy
and Jacqueline could have presented would not have constituted
“new evidence . . . discovered material to the defendant, . . . which
he could not, with reasonable diligence, have discovered and
produced at the trial.” (§ 1181(8).) Further, Portillo
acknowledged he would need 30 to 60 days from his receipt of the
trial transcript to prepare his motion for new trial. Although this

8 “‘To grant a new trial on the basis of newly discovered
evidence, the evidence must make a different result probable on
retrial.’ [Citation.] ‘[T]he trial court has broad discretion in
ruling on a new trial motion . . . ,’ and its ‘ruling will be disturbed
only for clear abuse of that discretion.’” (Verdugo, supra,
50 Cal.4th at p. 308.)

16
delay was not as significant as delaying a jury trial, the four
young victims had a right to be present at the sentencing and to
the finality that sentencing would bring.9 In light of Portillo’s
failure to support his sole stated reason for representing himself,
the court acted within its discretion in denying Portillo’s
request.10 (See People v. Doolin, supra, 45 Cal.4th at pp. 454-455
[trial court did not abuse discretion in denying untimely motion
for self-representation made at sentencing hearing where
defendant was unable to provide details on new evidence to
support motion for new trial]; Windham, supra, 19 Cal.3d at
p. 129 [denial of untimely motion for self-representation was not
an abuse of discretion because the sole reason for the motion was
that defendant believed trial counsel did not present a strong
case for self-defense, but the facts did not support the defense].)

9 Marsy’s Law provides victims with the right “‘[t]o be heard
. . . at any proceeding . . . involving a . . . plea, sentencing, . . . or
any proceeding in which a right of the victim is at issue.’”
(Crump v. Appellate Division of Superior Court (2019)
37 Cal.App.5th 222, 237, quoting Cal. Const., art. I, § 28,
subd. (b)(8).)
10 Because Portillo failed to provide an adequate basis for his
motion for new trial, the trial court likewise did not abuse its
discretion in implicitly denying Portillo’s request for a 30- to 60-
day continuance to file his motion. (See § 1050, subd. (e)
[“Continuances shall be granted only upon a showing of good
cause.”]; People v. Rhoades (2019) 8 Cal.5th 393, 451 [denial of
continuance of sentencing hearing reviewed for abuse of
discretion].)

17
 DISPOSITION

The judgment is affirmed.

FEUER, J.
We concur:

PERLUSS, P. J.

McCORMICK, J.*

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

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