Opinion
STEIN, J.
The People appeal an order dismissing the information charging William Lawrence Prince with several offenses, including the manufacture, and possession for sale of methamphetamine. (Health & Saf. Code, §§ 11379.6, 11378.) The court found that criminal prosecution was barred, under the double jeopardy clause, because in separate civil forfeiture proceedings the court had granted the government’s motion for entry of default after Prince failed to answer. Prince filed a motion to set aside the defaults, and all further proceedings in the civil forfeiture cases were stayed until the conclusion of the criminal case.
Facts
On April 19, 1993, the district attorney filed four forfeiture complaints in Mendocino County Superior Court pursuant to former Health and Safety Code section 11488.4, subdivision (a),
each of which named Prince as the real party in interest. The first complaint, No. CV 66860, sought forfeiture of $2,250 and various weapons and equipment; the second, No. CV66861, of itemized stereo components; the third, No. CV66862, of assorted computer equipment; and the fourth, No. CV66863, of video equipment. Each of the complaints alleged that the property was seized during a March 8, 1993, search of Prince’s residence, and that the items to be forfeited were “proceeds or purchased with proceeds from violations of sections 182 of the California Penal Code [and] 11379.6, 11378, & 11379 of the Health and Safety Code.” The first forfeiture complaint also alleged, in the alternative, that certain security equipment and a generator were forfeitable pursuant to section 11470, subdivision (b) because they were used to facilitate the manufacture of methamphetamine (§ 11379.6), and that the firearms were also forfeitable pursuant to section 11470, subdivision (d)(2) because they
were possessed during multiple violations, including sections 11377, 11378, and 11379.6.
Each complaint alleged that all of Prince’s personal property had been sold by a landlord in January 1991 to satisfy back rent obligations. Cash receipts found at Prince’s residence showed that at approximately that same time Prince began purchasing chemicals and labware from a known supplier to methamphetamine manufacturers. Prince had no apparent source of legitimate income, yet cash receipts were found in his residence reflecting expenditures of approximately $250,000 over the preceding three years.
On July 1, 1993, the court granted motions for entry of default on each of the forfeiture complaints. Prince subsequently moved to set aside the default judgments, alleging that he had filed a claim listing his home address, but did not receive notice of the forfeiture because he since had moved to county jail.
On August 24, 1993, the court, pursuant to a stipulation, continued Prince’s motion to vacate default in the forfeiture actions until the conclusion of his criminal case which had been filed the previous day.
The information charged Prince with manufacturing methamphetamine while armed with a firearm (§ 11379.6, subd. (a); Pen. Code, § 12022, subd. (c)), possession of ephedrine with intent to manufacture methamphetamine (§ 11383, subd. (c)), possession of methamphetamine for sale while armed with a firearm (§ 11378; Pen. Code, § 12022, subd. (c)), and possession of codeine. (§ 11350, subd. (a).) Prince pleaded not guilty.
On November 16, 1994, after allowing Prince to amend his plea to add a plea of once in jeopardy, the court presiding over the criminal case granted his motion to dismiss the information on the ground that the civil forfeiture proceedings imposed punishment for his criminal conduct, and therefore further criminal prosecution was barred by the double jeopardy clause. The People filed a notice of appeal that same day.
Analysis
The double jeopardy clause is one of the “least understood and, in recent years, one of the most frequently litigated provisions of the Bill of Rights.”
(Whalen
v.
United States
(1980) 445 U.S. 684, 699 [63 L.Ed.2d 715, 728-729, 100 S.Ct. 1432] (dis opn. by Rehnquist, J.).) The United States Supreme Court has stated that “. . . the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction [hereinafter “successive prosecution”] and multiple punishments for the same offense [hereinafter “multiple punishments”].”
(United States
v.
Halper
(1989) 490 U.S. 435, 440 [104 L.Ed.2d 487, 496, 109 S.Ct. 1892].)
“A decade ago, the law was clear that civil forfeitures did not constitute ‘punishment’ for double jeopardy purposes. In
United States
v.
One Assortment of 89
Firearms, 465 U.S. 354 [79 L.Ed.2d 361, 104 S.Ct. 1099] (1984), the Supreme Court held that the claimant’s prior acquittal on criminal charges did not bar a subsequent action for forfeiture under 18 U.S.C. § 924(d). Applying the test set forth in
United States
v.
Ward,
448 U.S. 242, 248 [65 L.Ed.2d 742, 749, 100 S.Ct. 2636] (1980), the Court concluded that Congress intended forfeiture to be ‘a remedial civil sanction.’
89 Firearms,
465 U.S. at p. 363 [79 L.Ed.2d at pp. 368-369]. Accordingly, it held that the Double Jeopardy Clause did not apply.”
(U.S.
v.
$405,089.23 U.S. Currency
(9th
Cir. 1994)
33 F.3d 1210, 1218, opn. mod. on den. rehg. (9th Cir. 1995) 56 F.3d 41, cert. granted
sub nom. U.S.
v.
Ursery
(1996)_U.S._[133 L.Ed.2d 707, 116 S.Ct. 762].)
The decisions of the Supreme Court in
United States
v.
Halper, supra,
490 U.S. 435, and
Austin
v.
United States
(1993) 509 U.S. 602 [125 L.Ed.2d 488, 113 S.Ct. 2801] have, however, raised questions concerning the application of the double jeopardy clause when the government first obtains a criminal conviction and later seeks forfeiture of proceeds of illegal transactions that also gave rise to the criminal convictions, or conversely, attempts to criminally prosecute a defendant, after obtaining a judgment of civil forfeiture. The issue is now pending before the United States Supreme Court in
U.S.
v.
$405,089.23 U.S. Currency, supra,
33 F.3d 1210 (holding that civil forfeiture proceeding violated double jeopardy clause because defendants had already been convicted of same offenses), and
U.S.
v.
Ursery
(6th Cir. 1995) 59 F.3d 568, certiorari granted January 12, 1996,_U.S._[133 L.Ed.2d 707, 116
S.Ct. 762] (vacating criminal conviction and sentence following entry of consent judgment in civil forfeiture of property used to facilitate offenses).
The trial court, in this case, applied the reasoning of
U.S.
v.
$405,089.23 U.S. Currency, supra,
33 F.3d 1210, in precisely the manner forewarned of by Judge Rhymer, in her dissent from the Ninth Circuit’s decision to deny a rehearing en banc. Judge Rhymer observed that, “[t]he flip side of the panel’s reasoning is that a drug dealer whose illegally obtained proceeds have previously been seized may not thereafter be prosecuted because he will already have been ‘punished.’ This cannot be right.”
(U.S.
v.
$405,089.23 U.S. Currency
(9th Cir. 1955) 56 F.3d 41, 42 [denial of rehearing en banc].) Yet, that is precisely what has occurred in this case.
We, of course, are bound only by the precedent of the United States Supreme Court on issues of federal constitutional law, and construe the decisions in
Halper
and
Austin
more narrowly than did the court in
U.S.
v.
$405,089.23 U.S. Currency, supra,
33 F.3d at page 1210,
and those cases following the Ninth Circuit’s reasoning. For reasons we shall explain, assuming arguendo that
Halper
applies at all,
it was error to dismiss the information based on Prince’s double jeopardy plea because Prince has not yet been subjected to
any
punishment in the civil forfeiture proceeding in light of the stay, and the pending motions to set aside the defaults.
A.
Halper and Austin
In
United States
v.
Halper, supra,
490 U.S. 435, the court considered the question whether a nominally civil penalty might nevertheless constitute a
second “punishment” under the double jeopardy clause. Its analysis was predicated on the fact that the defendant had already been punished once because he had been convicted of 65 counts under a criminal false claims statute. The district court refused to impose the full $2,000 per violation penalty under the civil False Claims Act, 31 United States Code sections 3729-3731, finding that the “statutorily authorized penalty of $130,000” was 220 times greater than the approximately $585 Halper had fraudulently obtained from the government. The government appealed.
The United States Supreme Court held that the fact the penalty is imposed in a civil proceeding, does not preclude a finding that the civil sanction,
as applied in a particular case,
constitutes “punishment” for purposes of application of the double jeopardy clause prohibition against multiple punishments in a separate proceeding. “[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment as we have come to understand the term.”
(United States
v.
Halper, supra,
490 U.S. at p. 448 [104 L.Ed.2d at p. 502].)
In light of Halper’s showing that the penalty was “grossly disproportionate” to the government’s loss, the court announced a rule “of reason:
Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss,
but rather appears to qualify as ‘punishment’ in the plain meaning of the word, then the defendant is entitled to an accounting of the Government’s damages and costs to determine if the penalty sought in fact constitutes a second punishment.” (490 U.S. at p. 449 [104 L.Ed.2d at p. 502], italics added.) The court left it to the discretion of the trial court to determine the “size of the civil sanction the Government may receive without crossing the line between remedy and punishment.”
(Id.
at pp. 449-450 [104 L.Ed.2d at pp. 502-503.) The court further emphasized that the rule it announced was for the “rare case,” such as the one before it where the fixed penalty per violation subjected a small but prolific offender to a penalty with no rational relationship to the government’s loss.
In
Austin
v.
United States, supra,
509 U.S. 602, 604 [125 L.Ed.2d 488, 494, 113 S.Ct. 2801, 2803] the court considered the question “whether the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property under 21 U.S.C. §§ 881(a)(4) and (a)(7).”
The government had filed an in rem action seeking forfeiture of Austin’s mobilehome and auto body shop, based in part on evidence that Austin had conducted a drug
transaction in his body shop, and had apparently retrieved the cocaine from his mobilehome.
The court held that the purpose of the Eighth Amendment was “to limit the government’s power to punish,” and that because punishment could be imposed in either civil or criminal proceedings, the excessive fines clause did not apply only to criminal penalties.
(Austin
v.
United States, supra,
509 U.S. 602, 609 [125 L.Ed.2d 488, 497, 113 S.Ct. 2801, 2805].) In this context, the question was whether forfeiture was historically understood as a fine or punishment to which the Eighth Amendment applied, and whether the particular forfeiture statutes involved served any punitive purpose. The court held that even if forfeitures under 21 United States Code sections 881(a)(4) and (a)(7) were at least partly remedial as the government contended, they also served the purposes of retribution and deterrence, because the property forfeited was not contraband, and its value could vary dramatically, making any relationship between the governments costs and the amount of the sanction “purely coincidental." (509 U.S. at p. 621 [125 L.Ed.2d at p. 505, 113 S.Ct. at pp. 2811-2812].) The court concluded that the excessive fines clause does apply to such forfeitures, and remanded for the trial court to determine whether the forfeiture was excessive.
B.
U.S.
v.
$405,089.23 U.S. Currency
In
U.S.
v.
$405,089.23 U.S. Currency, supra,
33 F.3d 1210, the court read
Austin,
as holding that any civil forfeiture that serves both remedial and punitive purposes is punishment, under
both
the excessive fines and double jeopardy clauses. It found the civil forfeiture of proceeds of illegal transactions pursuant to 18 United States Code section 981(a)(1)(A) and 21 United
States Code section 881(a)(6) to constitute “punishment” on its face because: (1)
Austin
held that forfeiture statutes have been historically recognized as a form of punishment, (2) these forfeiture statutes focus on culpability of the owner, by providing an innocent owner defense, and (3) the forfeiture is tied to the commission of specified offenses. (33 F.3d at pp. 1220-1221.) The Ninth Circuit panel concluded that the civil forfeiture proceeding was barred under the double jeopardy clause, without even requiring, as
Halper
demands, that the claimants demonstrate that the particular forfeiture sought was “grossly disproportionate” to its remedial goal. Nor did it allow the government to present any evidence of its losses, or any other relevant evidence on the issue.
(Id.
at p. 1222.)
The primary analytical flaw in
U.S.
v.
$405,089.23 U.S. Currency, supra,
33 F.3d 1210, is that the court “ ‘combined the two decisions
[Austin
and
Halper]
to excise Halper’s inquiry into proportionality prior to lowering the double jeopardy boom.’ ”
(Ragin
v.
U.S.
(W.D.N.C. 1995) 893 F.Supp. 570, 576, quoting
Ringor
v.
United States
(D.Hawaii 1995) 887 F.Supp. 1371.)
Austin
merely established the threshold test for whether the Eighth Amendment proscription against excessive fines could apply at all to a civil forfeiture, reserving for the trial court the question whether the fine was excessive. In
Halper,
the court applied the multiple punishment protection of the double jeopardy clause, to hold that, if a defendant has already been criminally convicted, and the government seeks in a separate proceeding to impose a civil penalty based upon the same offenses, the defendant may establish that the nominally civil penalty, is “grossly disproportionate” to the remedial purpose of the civil statute. Only if he or she meets that burden, must the court conduct an inquiry into the government’s costs and loss and determine whether, and at what level, the penalty sought to be imposed no longer has a rational relationship with the rough remedial justice the government is entitled to seek.
(U.S.
v.
Morgan
(2d Cir. 1995) 51 F.3d 1105, 1115, cert. den. _ U.S. _ [133 L.Ed.2d 112, 116 S.Ct. 171] [it is the defendant’s burden to establish “gross disproportion” before any accounting under
Halper
required].) The
Halper
prohibition against multiple punishment is triggered
only when the defendant has already been punished.
It does not deem the civil proceeding to be the functional equivalent of a criminal prosecution. Rather, it precludes imposition of that portion of the civil penalty that the government is unable to justify as roughly proportionate to the remedial goals of the civil sanction, because it is deemed a second punishment.
By conflating the
Austin
Eighth Amendment and the
Halper
double jeopardy analysis, the court in
U.S.
v.
$405,089.23 U.S. Currency, supra,
33 F.3d 1210, incorrectly concluded that a civil forfeiture of drug proceeds
constitutes “punishment” for double jeopardy purposes, based on its analysis of the purposes of the statute, without regard to its application. No double jeopardy claim arises under
Halper
unless the claimant also demonstrates that, as applied in the particular case, the penalty is “grossly disproportionate” to the statute’s remedial purpose. Only then has the defendant made the threshold showing that is a prerequisite to determining that a nominally civil penalty, as applied, must instead be deemed a second punishment for double jeopardy purposes.
The court in
U.S.
v.
$405,089.23 U.S. Currency, supra,
33 F.3d 1210, also confused the multiple punishment analysis of
Halper
with double jeopardy protection against successive criminal prosecutions, by holding that the civil forfeiture proceeding was barred altogether. Under
Halper,
if the court, after conducting an inquiry, determines that the forfeiture is “grossly disproportionate,” the remedy is not to bar the proceeding altogether, but to adjust to the scope of the forfeiture so that it is proportionate to the statute’s remedial purpose.
(United States
v.
Halper, supra,
490 U.S. 435, 449-450 [104 L.Ed.2d 487, 502-503].)
C.
Dismissal of the Criminal Information in This Case.
Having clarified the limitations of Halper's extension of double jeopardy protection to imposition of civil penalties, we now consider whether the trial court correctly applied
Halper
when it granted Prince’s motion to dismiss the criminal information. Assuming arguendo, that
Halper
has any application at all when a defendant has not already been criminally convicted, but instead asserts a judgment of civil forfeiture bars the criminal prosecutions,
there are several reasons why it was error to dismiss the criminal information based upon Prince’s double jeopardy plea.
First, the dismissal of the information while the civil forfeiture proceedings were still pending was premature because the double jeopardy protection recognized in
Halper
does not apply unless the defendant has already been subjected to punishment once. Although default judgments were entered, Prince filed motions to have them set aside, and the forfeiture proceedings, by stipulation, were continued until the conclusion of the criminal case.
The majority of courts that have directly addressed the question have held that a defendant is not “punished” for purposes of application of
Halper
until a final judgment of forfeiture is entered. (See, e.g.,
U.S.
v.
Sanchez-Cobarruvias
(9th Cir. 1995) 65 F.3d 781, 783-784, cert. den. _ U.S. _ [133 L.Ed.2d 745, 116 S.Ct. 797];
U.S.
v.
Park
(5th Cir. 1991) 947 F.2d 130, 134-135, vacated in part on other grounds, 951 F.2d 634;
McGowan
v.
United States
(W.D.N.C. 1995) 899 F.Supp. 1465, 1467;
Ragin
v.
U.S., supra,
893 F.Supp. 570, 574;
U.S.
v. Wolf (D.Or. 1995) 903 F.Supp. 36, 37;
U.S.
v.
Stanwood
(D.Or. 1994) 872 F.Supp. 791, 798;
U.S.
v.
Messino
(N.D.Ill. 1995) 876 F.Supp. 980, 983; see also
U.S.
v.
Sanchez-Escareno
(5th Cir. 1991) 950 F.2d 193, 201-203, cert. den. 506 U.S. 841 [121 L.Ed.2d 78, 113 S.Ct. 123] [defendants who had signed promissory notes for civil fines but had not yet paid, had not yet been punished, and therefore criminal prosecution was not barred under double jeopardy clause].)
In this case, although the court granted the government’s motions for entry of default, they may be vacated depending upon the disposition of the pending motion to set aside the defaults. (See
People
v.
One Parcel of Land
(1991) 235 Cal.App.3d 579, 582-584 [286 Cal.Rptr. 739].) Final resolution of the forfeiture proceedings has been stayed pending the outcome of the criminal prosecution. The stay of the forfeiture precludes the final imposition of any civil penalty upon Prince, and leaves open the possibility that he may yet successfully oppose the forfeiture. Consequently, there has been no “punishment” imposed in the civil proceedings, and therefore no double jeopardy claim under
Halper
has arisen with respect to the criminal prosecution.
(U.S.
v.
Park, supra,
947 F.2d 130, 134-135 [Where forfeiture proceedings are held in abeyance pending outcome of criminal prosecution, defendant has not been “punished,” and therefore
Halper
double jeopardy protection does not preclude criminal conviction.];
U.S.
v.
Clementi
(8th Cir. 1995) 70 F.3d 997, 999 [same]; see also
U.S.
v.
McDermott
(10th Cir. 1995) 64 F.3d 1448, 1454-1455, cert. den. _ U.S. _ [133 L.Ed.2d 857, 116 S.Ct. 930] [civil forfeiture proceedings did not bar criminal conviction where civil forfeiture action is stayed pending outcome of criminal proceeding after defendant answered forfeiture complaint].)
Prince must have at least been subjected to a final judgment of civil forfeiture before he can claim that it constituted a “punishment” that precludes his criminal prosecution. Otherwise, Prince could obtain the dismissal of the criminal information, on the ground that he has already been “punished” in the forfeiture proceeding, then have the default judgments set aside, successfully challenge the forfeiture, and ultimately not be punished even
once.
Certainly such a scenario was never even imagined in
Halper,
and we can conceive of no principles of double jeopardy jurisprudence which require such a result.
Second, even if the forfeiture proceedings were not stayed, we agree with those courts that have held a defendant who does not file a claim, or fails to file a timely claim, or does not file an answer, and suffers a default judgment in a civil forfeiture, may not assert the default judgment as a prior punishment and bar to a subsequent criminal prosecution. (See, e.g.,
U.S.
v.
Torres
(7th Cir. 1994) 28 F.3d 1463, 1465, cert. den. _ U.S. _ [130 L.Ed.2d 603, 115 S.Ct. 669], citing
Serfass
v.
United States
(1975) 420 U.S. 377, 391-392 [43 L.Ed.2d 265, 275-276, 95 S.Ct. 1055];
U.S.
v.
Ruth
(7th Cir. 1995) 65 F.3d 599, 604;
U.S.
v.
Arreola-Ramos
(5th Cir. 1995) 60 F.3d 188, 190;
U.S.
v.
Perez
(D.Colo. 1995) 902 F.Supp. 1318, 1322 [defendant who filed a late claim in forfeiture proceeding was never in jeopardy, and forfeiture judgment is no bar to criminal prosecution]; see also
U.S.
v.
Cretacci
(9th Cir. 1995) 62 F.3d 307 [holding that administrative forfeiture does not bar criminal prosecution];
People
v.
Angeloni
(1995) 40 Cal.App.4th 1267 [47 Cal.Rptr.2d 584] [same];
U.S.
v.
Baird
(3d Cir. 1995) 63 F.3d 1213, 1217
[administrative forfeiture cannot constitute “punishment”].) Some courts have reached the same conclusion when a defendant files a claim, but later withdraws it and consents to entry of forfeiture.
(Ragin
v.
U.S., supra,
893 F.Supp. 570, 574-575; but see
U.S.
v.
Brophil
(D.Vt. 1995) 899 F.Supp. 1257, 1261 [civil forfeiture proceedings place defendant in jeopardy even if defendant does not contest the forfeiture proceedings];
Gainer
v.
U.S.
(D.Kan. 1995) 904 F.Supp. 1234 [same].) Still others have held that, whether or not the defendant files a claim, a default judgment based on a failure to answer, does not bar a subsequent criminal proceeding because jeopardy could not attach in the civil forfeiture proceedings any sooner than the filing of the defendant’s answer. (See, e.g.,
U.S.
v.
Kearns
(9th Cir. 1995) 61 F.3d 1422, 1428;
U.S.
v.
Barton
(9th Cir. 1995) 46 F.3d 51, 52.)
The courts that find that an uncontested civil forfeiture is not a bar to a criminal prosecution offer various different theories for why the failure to file a claim or answer in the forfeiture proceeding defeats the contention that a subsequent criminal prosecution is not barred by the default forfeiture judgment. By citing them we intend only to embrace their conclusion, not necessarily the analytical route followed in each case. In our view, the most persuasive reason why a forfeiture that is based upon a default or failure to file a timely claim, does not bar a subsequent criminal prosecution, is that the defendant has either failed to assert an ownership interest in the first instance, or by failing to answer, has effectively abandoned any claim to the property. Thus, he cannot claim to have been “punished” by its forfeiture. Moreover, “[t]o hold otherwise, would allow criminal defendants to choose their punishment. A criminal defendant could decide to forfeit material possessions in lieu of going to prison. This is certainly not the intent of Congress or recent Supreme Court decisions.”
(U.S.
v.
Walsh
(D.Ariz. 1994) 873 F.Supp. 334, 337.)
The only reference in the record on appeal to a claim having been filed by Prince, is his own assertion that he did file one, contained in his declaration in support of the motion to set aside the default judgments. Without a copy of the claim, we cannot determine whether it was timely filed. It is clear, however, on the record before us, that Prince did not file an answer, and default judgments were entered in the forfeiture proceedings. For the reason we have explained, even if they were final, default judgments in the civil forfeiture proceedings could not bar the criminal prosecution.
We decline to reach the remaining issues raised by the People, including whether the forfeiture of drug proceeds is ever “grossly disproportionate” (see, e.g.,
People
v.
$1,930 United States Currency, supra,
38 Cal.App.4th 834;
S.E.C.
v.
Bilzerian
(D.C.Cir. 1995) 29 F.3d 689 [308 App.D.C. 43];
U.S.
v.
Salinas, supra,
65 F.3d 551;
District Atty. of Kings County
v.
Ladarola
(1995) 164 Misc.2d 204 [623 N.Y.S.2d 999] and cases cited therein); whether the civil forfeiture proceedings and criminal prosecution are “separate proceedings” (see, e.g.,
U.S.
v.
Millan, supra,
2 F.3d 17, and whether the forfeiture and criminal prosecution impose punishment for the “same offenses”; see
United States
v.
Dixon
(1993) 509 U.S. 688, 696-697 [125 L.Ed.2d 556, 568-569, 113 S.Ct. 2849, 2856];
Department of Revenue of Montana
v.
Kurth Ranch, supra,
511 U.S. 767, _ [128 L.Ed.2d 767, 777-778, 114 S.Ct. 1937, 1945];
U.S.
v.
$292,888.04 in U.S. Currency
(9th Cir. 1995) 54 F.3d 564;
U.S.
v.
Chick, supra,
61 F.3d 682.)
It is unnecessary to reach these questions, because we reverse the order dismissing the information on the grounds we have stated. The remaining double jeopardy issues may be entirely mooted, at least as it pertains to the criminal prosecution before the trial court, unless Prince prevails on his motion to set aside the default judgments, and final declarations of forfeiture are entered before jeopardy attaches in the criminal prosecution. (See, e.g.,
United States
v.
Kearns, supra,
61 F.3d 1422, 1428,
U.S.
v.
Barton, supra,
46 F.3d 51, 52;
U.S.
v.
Sanchez-Cobarruvias, supra,
65 F.3d 781, 783-784;
Ragin
v.
U.S., supra,
893 F.Supp. 570, 574;
U.S.
v.
Stanwood, supra,
872 F.Supp 791, 798.)
Conclusion
The order dismissing the information is reversed, and the matter is remanded for further proceedings consistent with the views expressed in this opinion.
Strankman, P. J., and Dossee, J., concurred.
Respondent’s petition for review by the Supreme Court was denied June 19, 1996.