Filed 10/26/23 P. v. Adams CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079691
v. (Super.Ct.No. FVI800765)
GABRIEL ANTHONY ADAMS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kawika Smith,
Judge. Reversed and remanded with directions.
William D. Farber, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Alan Amann and Daniel
Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
Defendant and appellant Gabriel Anthony Adams appeals from an order
summarily denying his petition to vacate his voluntary manslaughter conviction and be
resentenced under Penal Code section 1172.6.1 He contends that the trial court erred in
denying his petition without issuing an order to show cause and conducting an
evidentiary hearing because his record of conviction does not conclusively establish his
ineligibility as a matter of law. Defendant also argues his trial counsel was ineffective in
stipulating to defendant’s ineligibility at the prima facie stage. Based on our independent
review, we find the trial court erred in denying defendant’s petition at the prima facie
stage. We thus reverse the order and remand the matter to the trial court with directions
to issue an order to show cause and hold an evidentiary hearing under section 1172.6,
subdivision (d).2
1 Subsequent unspecified statutory references are to the Penal Code. Defendant filed his petition for resentencing under former section 1170.95, which the Legislature later renumbered to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We hereafter cite to section 1172.6 for ease of reference.
2 Because we find the trial court erred in impliedly engaging in factfinding at the prima facie stage, we need not address defendant’s claim his counsel was ineffective.
2 II.
FACTUAL AND PROCEDURAL BACKGROUND3
On April 6, 2008, at approximately 12:30 a.m., sheriff’s dispatch received multiple
911 calls for shots heard and a gunshot victim in the area of Hohokam Road in the city of
Apple Valley. Deputies arrived and found the victim on the sidewalk in front of a home,
bleeding from a gunshot wound to his upper chest. Fire personnel arrived on scene and
transported the victim to a hospital, where he died from the gunshot wound.
Following an investigation, detectives learned the victim and several of his friends
attended a party at a home on Hohokam Road, along with a second group of people that
included defendant and codefendants, Matthew Santos and Jose Acosta. During the
party, the victim and Acosta got into an argument inside the residence. The two
eventually moved to the backyard and engaged in a fist fight. The argument and fist fight
were witnessed by multiple individuals. The victim was the reported winner of the fight,
with Acosta receiving a split lip. Defendant and his cohorts were later ejected and told to
leave the party. As they left, the group made comments they would return, and that “the
others did not know what was coming to them.”
Defendant and Santos got into Acosta’s vehicle and returned to their own
residence, where they picked up a fourth person, codefendant Steve Martinez. When they
arrived at their home, defendant asked Santos if he still had a gun. Santos indicated he
3 The factual background is taken verbatim from this court’s nonpublished opinion in defendant’s prior nonpublished appeal, case No. E072512. (People v. Adams (Feb. 25, 2020, E072512) (Adams II).) We took judicial notice of our prior nonpublished opinions in case Nos. E052681 and E072512.
3 did, and defendant told him to get the gun. Santos looked to Acosta and asked him if he
should get the gun, and Acosta told him yes. Santos thereafter retrieved a 20-gauge
shotgun and ammunition and placed the items in the trunk of Acosta’s vehicle. Martinez
agreed to go with the other three to get revenge on the victim for beating up Acosta.
While en route back to the party, defendant confirmed with Santos that he brought
the shotgun with them. All four occupants in the vehicle had knowledge the shotgun was
in the car. When they arrived at the residence, they saw a sheriff’s vehicle in the street
and waited for it to leave. Once it was gone, Acosta drove the vehicle down the street to
the front of the party, and they all got out.
The victim and his friends were hanging out in the street in front of the residence.
Defendant and Martinez approached the victim and his friends, and the two groups
exchanged words. Defendant yelled for Santos to “‘bring it out,’ meaning to get the gun,
and [Acosta] opened the trunk.” Santos put socks over his hands, grabbed the .20-gauge
shotgun, loaded it, and then walked towards the two groups with the shotgun at his side.
As Santos neared the group, he raised the shotgun. Defendant told Martinez to
move, and Martinez stepped to the side. Santos pointed the shotgun at the victim and
said, “‘What now?’” Meanwhile, defendant and the rest of his codefendants encouraged
Santos to shoot the victim. Santos pulled the trigger and shot the victim in the chest.
Santos ran from the shooting with the shotgun and met defendant in a vacant field.
Thereafter, they ran back to their residence where they met Martinez and Acosta and
concealed the shotgun and ammunition. All four talked about the incident and what they
4 would say if questioned by police. Santos was identified as the shooter and admitted to
shooting the victim during an interview.
On May 5, 2008, an information was filed charging defendant and his three
codefendants with murder (§ 187, subd. (a); count 1) and active participation in a
criminal street gang (§ 186.22, subd. (a); count 2). As to count 1, the information also
alleged that a principal personally and intentionally discharged a firearm, proximately
causing great bodily injury and death to the victim (§ 12022.53, subds. (d) & (e)(1)); that
a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) &
(e)(1)); that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)); and
that the offense was committed for the benefit of, at the direction of, or in association
with a criminal street gang, with the specific intent to promote, further, or assist in
criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).
On July 23, 2010, the People amended the information by interlineation to add
count 3, voluntary manslaughter (§ 192, subd. (a)), with attendant allegations that
defendant personally used a firearm (§ 12022.5, subd. (a)) and 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)(C)). Pursuant to a negotiated disposition, defendant
thereafter pled guilty to count 3 and admitted the attendant enhancement allegations. In
return, the People agreed to a stipulated term of 25 years and dismissal of the remaining
allegations. A factual basis for the plea was established.
5 On November 24, 2010, after the trial court denied defendant’s motion to
withdraw his guilty plea and admissions, the court sentenced defendant to the agreed-
upon term of 25 years in state prison, consisting of 11 years for the voluntary
manslaughter conviction, a consecutive term of 10 years for the gang enhancement, plus
four years for the firearm allegation. The court also dismissed the remaining charges and
enhancement allegations and awarded defendant 1,107 days of credit for time served.
On December 20, 2011, in case No. E052681, we modified the judgment by
striking imposition of certain fees. In all other respects, we affirmed the judgment.
(People v. Adams (Dec. 20, 2011, E052681) [nonpub. opn.].)
On January 10, 2019, defendant filed a petition pursuant to former section 1170.95
(§ 1172.6), seeking to vacate his voluntary manslaughter conviction and asking for
resentencing in light of Senate Bill No. 1437. (Adams II, supra, E072512.)
On March 14, 2019, the trial court summarily denied defendant’s petition, finding
defendant was not entitled to relief as a matter of law because defendant had not been
convicted of murder. Defendant subsequently appealed, and on February 25, 2020, in
case No. E072512, we affirmed the judgment.
On January 3, 2022, defendant filed a second petition for resentencing in light of
Senate Bill No. 775, which expanded resentencing eligibility to persons convicted of
manslaughter based on the felony-murder rule or murder under the natural and probable
consequences doctrine or any other theory under which malice was imputed to a person
6 based solely on that person’s participation in a crime. In support, defendant attached
excerpts of testimony from the preliminary hearing transcript.
The trial court appointed counsel for defendant and provided the parties the
opportunity for briefing and to obtain transcripts of the relevant hearings. On August 12,
2022, the court held a hearing to determine defendant’s eligibility. At that time,
defendant’s appointed counsel informed the court that “In reviewing [the People]’s
preliminary opposition as well as the records that have been provided to me, including
the preliminary hearing transcript, . . . I have to concur with the People’s position that
[defendant] is ineligible for relief under what is now [section 1172.6], as he was
prosecuted under an aider and abettor theory, not a felony murder or natural probable
consequence theory.” The trial court thereafter immediately denied defendant’s petition
for resentencing. The court explained, “So having reviewed the motions and there has
been no opposition to the opposition, . . . the Court will find that [defendant] is not
eligible for relief and dismiss the petition.” Defendant timely appealed.
III.
DISCUSSION
On appeal, defendant argues the trial court erred in denying his petition because
his record of conviction does not conclusively establish his ineligibility as a matter of law
and the court impermissibly made factual findings at the prima facie stage. He also
asserts his trial counsel was ineffective in stipulating to defendant’s ineligibility at the
prima facie stage. Defendant contends the court should have issued an order to show
7 cause and conducted an evidentiary hearing. The People request that we take judicial
notice of the reporter’s transcript, the clerk’s transcript, and the preliminary hearing
transcript in case No. E052681, and argue that the record conclusively establishes
defendant was ineligible for relief as a matter of law and thus the trial court did not err in
summarily denying the petition for resentencing.4
A. Legal Background
After defendant’s conviction, effective January 1, 2019, the Legislature passed
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which amended sections 188 and 189, the
laws pertaining to felony murder and murder under the natural and probable
consequences doctrine, “to ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not a major participant in
the underlying felony who acted with reckless indifference to human life.” (Stats. 2018,
ch. 1015, § 1, subd. (f); see People v. Gentile (2020) 10 Cal.5th 830, 846-847 (Gentile).)
The Legislature accomplished this by amending sections 188 and 189.
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in a crime
4 Defendant opposes the People’s request for judicial notice as there is no indication in the record that the trial court considered, evaluated, or relied on the reporter’s transcript, clerk’s transcript, or the preliminary hearing transcript in case No. E052681, or that the People had proffered these transcripts before the prima facie hearing. Because it is unnecessary for our resolution of the issues on appeal, we deny the People’s request to judicially notice the reporter’s transcript, the clerk’s transcript, and the preliminary hearing transcript in case No. E052681.
8 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); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e), now limits the circumstances under which a person
may be convicted of felony murder: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) [defining first degree murder] 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, as described in subdivision (d) of [s]ection 190.2.” (Stats.
2018, ch. 1015, § 3.)
In October 2021, the Legislature enacted Senate Bill No. 775, which became
effective on January 1, 2022. Senate Bill No. 775 clarified that persons convicted of
manslaughter and attempted murder are not categorically barred from resentencing under
section 1172.6. (Stats. 2021, ch. 551, § 2; Legis. Counsel’s Dig., Sen. Bill No. 775
(2021-2022 Reg. Sess.).) Section 1172.6 now reads, in pertinent part: “A person
convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with the court that sentenced
9 the petitioner to have the petitioner’s . . . manslaughter conviction vacated and to be
resentenced on any remaining counts when all of the . . . conditions [enumerated in
section 1172.6, subdivision (a)] apply[.]” (§ 1172.6, subd. (a).)
Senate Bill No. 1437 also created a procedure for offenders previously convicted
of felony murder or murder under the natural and probable consequences doctrine to seek
retroactive relief if they could no longer be convicted of murder or manslaughter under
the new law. (§ 1172.6, subd. (a); Gentile, supra, 10 Cal.5th at p. 843; People v. Lewis
(2021) 11 Cal.5th 952, 959; People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).)
“[T]he process begins with the filing of a petition containing a declaration that all
requirements for eligibility are met [citation], including that ‘[t]he petitioner could not
presently be convicted of murder or attempted murder [or manslaughter] because of
changes to . . . [s]ection 188 or 189 made effective January 1, 2019 . . . .” (Strong, at
p. 708, fn. omitted.)
Specifically, all of the following conditions must apply to warrant section 1172.6
relief: “(1) A complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder, murder under the
natural and probable consequences doctrine[,] or other theory under which malice is
imputed to a person based solely on that person’s participation in a crime”; “(2) The
petitioner was convicted of murder, attempted murder, or manslaughter following a trial
or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted
of murder or attempted murder”; and “(3) The petitioner could not presently be convicted
10 of murder or attempted murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a).)
Section 1172.6, subdivisions (b) and (c), require the court to appoint counsel for
all properly pleaded petitions, and then conduct a prima facie analysis, with briefing by
the parties, as to the petitioner’s eligibility before determining whether to issue an order
to show cause. (Lewis, supra, 11 Cal.5th at p. 957.) “When the trial court receives a
petition containing the necessary declaration and other required information, the court
must evaluate the petition ‘to determine whether the petitioner has made a prima facie
case for relief.’ [Citations.] If the petition and record in the case establish conclusively
that the defendant is ineligible for relief, the trial court may dismiss the petition.”
(Strong, supra, 13 Cal.5th at p. 708.) “[O]nly after the appointment of counsel and the
opportunity for briefing may the superior court consider the record of conviction to
determine whether ‘the petitioner makes a prima facie showing that he or she is entitled
to relief.’” (Lewis, at p. 957, italics omitted; see id. at p. 966; see People v. Flores (2022)
76 Cal.App.5th 974, 988 (Flores).) In cases where the conviction resulted from a guilty
plea rather than a trial, the record of conviction may include the transcript of the
defendant’s preliminary hearing testimony when the transcript “reliably reflect[s] the
facts of the offense for which the defendant was convicted.” (People v. Reed (1996) 13
Cal.4th 217, 223; see People v. Patton (2023) 89 Cal.App.5th 649, 657 (Patton), review
granted June 28, 2023, S279670 [summary denial of section 1172.6 petition affirmed
based on uncontroverted testimony at preliminary hearing].) “The record of conviction,”
11 our Supreme Court has explained, “will necessarily inform the trial court’s prima facie
inquiry under section [1172.6], allowing the court to distinguish petitions with potential
merit from those that are clearly meritless. This is consistent with the statute’s overall
purpose: to ensure that murder culpability is commensurate with a person’s actions,
while also ensuring that clearly meritless petitions can be efficiently addressed as part of
a single-step prima facie review process.” (Lewis, supra, 11 Cal.5th at p. 971.)
The court’s “prima facie inquiry . . . is limited. . . . ‘“[T]he court takes petitioner’s
factual allegations as true and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual allegations were proved. If so,
the court must issue an order to show cause.”’ [Citation.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without first conducting an
evidentiary hearing.’” (Lewis, supra, 11 Cal.5th at p. 971.) In reviewing a
section 1172.6 petition, the court may rely on “the procedural history of the case recited
in any prior appellate opinion.” (§ 1172.6, subd. (d)(3); People v. Clements (2022) 75
Cal.App.5th 276, 292 (Clements).) However, the role of the appellate opinion is limited,
and the court may not rely on factual summaries contained in prior appellate decisions or
engage in fact finding at the prima facie stage. (Clements, at p. 292; Lewis, at p. 972.)
Although, in reviewing the record of conviction, courts “should not engage in
‘factfinding involving the weighing of evidence or the exercise of discretion’” (Lewis, at
p. 972), when “the record . . . makes clear that [the petitioner] was the actual killer and
the only participant in the killing,” the petitioner “is not entitled to any relief under
12 section 1172.6.” (People v. Delgadillo (2022) 14 Cal.5th 216, 233; see People v. Garcia
(2022) 82 Cal.App.5th 956, 969-971 [where record of conviction “unequivocally
establishes that defendant was the ‘actual killer,’” defendant is not entitled to relief under
section 1172.6 as a matter of law].)
If a petitioner has made a prima facie showing of entitlement to relief, “‘the court
shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.) Once the
court determines that a defendant has made a prima facie showing, it “must [then] hold an
evidentiary hearing at which the prosecution bears the burden of proving, ‘beyond a
reasonable doubt, that the petitioner is guilty of murder or attempted murder’ under state
law as amended by Senate Bill [No.] 1437. [Citation.] ‘A finding that there is substantial
evidence to support a conviction for murder, attempted murder, or manslaughter is
insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.’ [Citation.] ‘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.’” (Strong, at
p. 709; accord, Lewis, supra, 11 Cal.5th at p. 960.)
Senate Bill No. 775 also made substantive amendments to section 1172.6 that
were consistent with Lewis. As relevant herein, section 1172.6, subdivision (d)(3), states
the limitations on evidence admissible at an evidentiary hearing: “The admission of
evidence in the hearing shall be governed by the Evidence Code, except that the court
may consider evidence previously admitted at any prior hearing or trial that is admissible
13 under current law, including witness testimony, stipulated evidence, and matters
judicially noticed. The court may also consider the procedural history of the case recited
in any prior appellate opinion. However, hearsay evidence that was admitted in a
preliminary hearing pursuant to subdivision (b) of [s]ection 872 shall be excluded from
the hearing as hearsay, unless the evidence is admissible pursuant to another exception to
the hearsay rule.” (§ 1172.6, subd. (d)(3).)
We independently review the trial court’s determination that the petitioner failed
to make a prima facie showing for relief. (People v. Harden (2022) 81 Cal.App.5th 45,
52; People v. Eynon (2021) 68 Cal.App.5th 967, 975.) A denial at this stage is
appropriate only if the record of conviction demonstrates that the petitioner is ineligible
for relief as a matter of law. (Lewis, supra, 11 Cal.5th at p. 960.)
B. Analysis
As relevant here, defendant’s petition included the three qualifying conditions
specified in subdivision (a)(1) through (3) of section 1172.6, by alleging the charging
document filed against him allowed the prosecution to proceed under the felony-murder
rule or natural and probable consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in a crime, that he pled
guilty to voluntary manslaughter in lieu of a trial at which he could have been convicted
of murder, and that he could not presently be convicted of murder because of changes to
section 188 or 189 made effective January 1, 2019. Defendant included other
information required by section 1172.6, subdivision (b)(1), and requested appointment of
14 counsel. Defendant also attached Senate Bill No. 775 and portions of two detectives’
testimony from the preliminary hearing which showed defendant was not the actual
shooter but encouraged Santos to bring the gun and shoot the victim.
As defendant’s petition was facially sufficient, the trial court was required to
appoint counsel, invite the prosecution to file and serve a response, and allow defendant
to file and serve a reply prior to assessing whether a prima facie case for relief was made
under the statute. (§ 1172.6, subds. (b) & (c); see Lewis, supra, 11 Cal.5th at pp. 957,
960, 962, 964.) The court was further required to accept defendant’s factual allegations
as true and make a preliminary assessment of entitlement to relief if the allegations were
proved. Only where the record of conviction contains established facts showing that
defendant is ineligible for resentencing as a matter of law may the court find no prima
facie showing has been made. (See Lewis, at p. 971; People v. Duchine (2021) 60
Cal.App.5th 798, 815.) “[A]s a matter of law” means that the record of conviction
conclusively refutes the allegations of the petition without resort to factfinding, weighing
of evidence, or credibility determinations. (People v. Lopez (2022) 78 Cal.App.5th 1,
14.)
The trial court did not specify the documents reviewed but relied solely upon
the motions submitted by the parties to deny defendant’s petition. Defendant’s
section 1172.6 petition included excerpts of testimony from the preliminary hearing
transcript. The People’s opposition included recitation of testimony of two investigating
detectives from the preliminary hearing. There is no indication in the record to show the
15 trial court had the entire preliminary hearing transcript or that it had reviewed the entire
preliminary hearing transcript before denying the petition.
Courts of Appeal are split on the significance of the preliminary hearing transcript
in determining whether a petitioner has made a prima facie case for resentencing under
section 1172.6, and the issue is now before the Supreme Court.5 (Patton, supra, 89
Cal.App.5th at p. 657; People v. Nguyen (2020) 53 Cal.App.5th 1154, 1161 [court may
consider information contained in the preliminary hearing transcript when it is stipulated
as the factual basis for the plea]; People v. Davenport (2021) 71 Cal.App.5th 476, 481
[court held preliminary hearing transcript was part of the record of conviction, but
concluded the trial court erroneously relied on that transcript to make the prima facie
determination because the defendant “did not stipulate to the transcript as a factual basis
for his plea”]; contrast, Flores, supra, 76 Cal.App.5th at p. 991 [information in the
preliminary hearing transcript may not be used to find a petitioner is ineligible for relief
as a matter of law].)
In this case, it appears the trial court relied on excerpts from the preliminary
hearing as presented by defendant and the People before denying the section 1172.6
petition. However, this evidence does not conclusively show defendant was ineligible for
relief as a matter of law without making factual findings. In addition, neither the
information nor the plea excluded defendant from resentencing eligibility as a matter of
5 Because we conclude that the trial court erred by implicitly engaging in factfinding at the prima facie stage, we need not and do not reach the question of whether the preliminary hearing transcript may be reviewed in deciding whether a resentencing petition states a prima facie claim for relief.
16 law, and defendant’s petition was adequate under the statute. There is no indication in
the documents provided to the trial court that defendant admitted to the truth of the
testimony contained in the preliminary hearing and his stipulation that the transcript
provided a factual basis for the plea “is not a ‘“binding admission for all purposes.”’”
(Flores, supra, 76 Cal.App.5th at p. 991.) Even if it was, the preliminary hearing
testimony, which consisted primarily of hearsay testimony from two investigating
detectives, standing alone, does not conclusively establish as a matter of law that
defendant was the actual killer, acted with intent to kill or express malice, or was a major
participant in an underlying crime who acted with reckless indifference to human life
without making factual findings and credibility determinations. It does not exclude the
possibility that defendant was, or could have been, convicted under the imputed malice
theories eliminated by Senate Bill Nos. 775 and 1437. To find defendant ineligible for
resentencing on this record would require judicial factfinding, which is impermissible at
the prima facie stage. (Lewis, supra, 11 Cal.5th at p. 971.)
We conclude the trial court improperly relied on the preliminary hearing evidence
to make factual findings when it found defendant’s petition failed to state a prima facie
case for resentencing. Nothing in the record establishes as a matter of law that defendant
was ineligible for relief. The trial court’s implicit finding that defendant was a direct
aider and abettor rests on the type of factfinding in which the trial court may not engage
at the prima facie stage.
17 IV.
DISPOSITION
The trial court’s order denying defendant’s section 1172.6 petition for
resentencing is reversed and the matter is remanded with directions. On remand, the trial
court shall issue an order to show cause and hold an evidentiary hearing pursuant to
section 1172.6, subdivision (d)(3).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
McKINSTER Acting P. J.
MILLER J.