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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-35264
5 DANAN GABALDON,
6 Defendant-Appellant,
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Briana H. Zamora, District Judge
9 Hector H. Balderas, Attorney General 10 Maha Khoury, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Bennett J. Baur, Chief Public Defender 14 Mary Barket, Assistant Appellate Defender 15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 HANISEE, Judge. 1 {1} Defendant appeals from the district court’s judgment and sentence entered,
2 pursuant to a jury trial by which he was convicted for residential burglary, larceny,
3 and resisting, evading, or obstructing an officer. The district court sentenced
4 Defendant to ten years of incarceration, which included a habitual offender
5 enhancement of eight years and a suspended sentence of two years. On appeal,
6 Defendant raises five issues, challenging (1) the sufficiency of the evidence to support
7 his convictions for residential burglary and larceny; (2) the district court’s rejection
8 of Defendant’s requested intent instruction for the offense of residential burglary; (3)
9 the district court’s denial of a mistrial when the victim testified in contravention of a
10 court order; (4) the enhancement of Defendant’s sentence based on two prior felony
11 convictions—one that was used as a predicate felony to a firearm charge and also the
12 felony firearm charge itself; and (5) the district court’s failure to make a change in
13 venue. The last three issues are raised under the requirements of State v. Franklin,
14 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-
15 029, ¶ 24, 103 N.M. 655, 712 P.2d 1. We are not persuaded by any of Defendant’s
16 arguments for the reasons set forth below. We, therefore, affirm.
17 DISCUSSION
2 1 {2} Because this is a non-precedential opinion drafted to inform the parties of our
2 reasoning, we omit a section devoted to the facts of which the parties are aware, and
3 discuss the facts only as they are relevant to our analysis.
4 1. The Evidence Was Sufficient to Support Defendant’s Convictions for 5 Residential Burglary and Larceny
6 {3} When assessing the sufficiency of the evidence, “we view the evidence in the
7 light most favorable to the guilty verdict, indulging all reasonable inferences and
8 resolving all conflicts in the evidence in favor of the verdict.” State v. Samora, 2016-
9 NMSC-031, ¶ 34, 387 P.3d 230 (internal quotation marks and citation omitted). We
10 disregard all evidence and inferences that support a different result. See State v. Rojo,
11 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “We then determine whether
12 substantial evidence of either a direct or circumstantial nature exists to support a
13 verdict of guilt beyond a reasonable doubt with respect to every element essential to
14 a conviction.” State v. Garcia, 2016-NMSC-034, ¶ 15, 384 P.3d 1076 (internal
15 quotation marks and citation omitted). “Substantial evidence is relevant evidence that
16 a reasonable mind might accept as adequate to support a conclusion.” State v. Largo,
17 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and citation omitted).
18 Residential Burglary
19 {4} In his sufficiency challenge to his conviction for residential burglary, Defendant
20 contends that the State’s evidence was inadequate to prove that he entered the
3 1 residence with an intent to commit a theft when inside, as required by the jury
2 instructions. See Garcia, 2016-NMSC-034, ¶ 17 (“Jury instructions become the law
3 of the case against which the sufficiency of the evidence is to be measured.”
4 (alteration, internal quotation marks, and citation omitted)). Defendant states the
5 evidence showed that he entered a stranger’s unlocked residence while fleeing from
6 the police and that his actions—entering the home, showering there, and changing into
7 ill-fitting clothes belonging to the victim—were spontaneous and haphazard, not
8 intentionally planned. Defendant relies on case law emphasizing that “[a]n intent
9 formed after the illegal entry would not suffice.” State v. Romero, 1998-NMCA-057,
10 ¶ 8, 125 N.M. 161, 958 P.2d 119; State v. Elliott, 1975-NMCA-087, ¶ 50, 88 N.M.
11 187, 539 P.2d 207 (explaining that “[t]he gravamen of the offense of burglary is the
12 intent with which the [residence] is entered[,]” and that evidence of an intent formed
13 after the entry does not prove a burglary), rev’d on other grounds, 1976-NMSC-030,
14 ¶ 1, 89 N.M. 305, 551 P.2d 1352.
15 {5} “Intent is subjective and is almost always inferred from other facts in the case,
16 as it is rarely established by direct evidence.” State v. Duran, 2006-NMSC-035, ¶ 7,
17 140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted). More
18 specifically, “[i]ntent may be proved by inference from the surrounding facts and
4 1 circumstances.” State v. Kent, 2006-NMCA-134, ¶ 15, 140 N.M. 606, 145 P.3d 86
2 (internal quotation marks and citation omitted).
3 {6} The evidence shows that police were dispatched to a residence based on a
4 complaint about a vehicle in front of that house, and there they found Defendant in the
5 driver’s seat. Police then discovered that the license plate on the vehicle was stolen
6 and decided to conduct a felony stop. Defendant did not comply with the officers’
7 instructions and then fled on foot. Defendant jumped over a sharp and pointy chain-
8 link fence and ran across a field and into a residential neighborhood. The officers set
9 up a perimeter around the neighborhood and searched for Defendant. Within that
10 perimeter, Defendant entered the home of a stranger, Mr. Andrew Jaramillo, by way
11 of a backdoor that was closed but unlocked. While inside, Defendant apparently
12 showered and changed into clothing belonging to Mr. Jaramillo. Officers found
13 Defendant wet in Mr. Jaramillo’s bathroom, which also contained a wet and dirty
14 bathtub. An officer noticed that Defendant changed out of his distinctive black and
15 yellow Steeler’s jersey tee-shirt and shorts and into the ill-fitting clothes that were too
16 warm for the weather and provided full coverage for Defendant’s body, including the
17 large tattoo on the back of his neck.
18 {7} Although we agree with Defendant that this evidence shows that he acted with
19 an intent to flee from police, such an intent does not preclude Defendant from forming
5 1 an intent to steal prior to his unauthorized entry into the home. We agree with the
2 State that an intent to flee can coexist with an intent to enter the residence with the
3 purpose to hide and take whatever is available in order to further his escape. Our
4 courts state that “intent is often inferred from an overt act of the defendant.” Duran,
5 2006-NMSC-035, ¶ 14. In this case, Defendant’s intent, at the time of his
6 unauthorized entry, to take what he could from the residence to further his escape can
7 be inferred from Defendant’s act of entering the home without authorization, taking
8 a shower, and taking clothing from Mr. Jaramillo’s closet and putting them on to
9 disguise himself. See, e.g., State v. Mireles, 1971-NMCA-027, ¶ 6, 82 N.M. 453, 483
10 P.2d 508 (holding that evidence that a residence had been entered with an intent to
11 commit theft was the fact that various items of personal property had been stolen); see
12 also State v. Castro, 1979-NMCA-023, ¶ 19, 92 N.M. 585, 592 P.2d 185 (“The
13 burglarious intent can be reasonably and justifiably inferred from the unauthorized
14 entry alone.”), overruled on other grounds by Sells v. State, 1982-NMSC-125, ¶¶ 7-
15 10, 98 N.M. 786, 653 P.2d 162. Defendant’s actions from the time of the attempted
16 felony stop to his capture show a consistent intent to flee and give rise to a reasonable
17 inference that he intended to enter the home to hide in it and take something in
18 furtherance of his escape efforts. There is no requirement for the State to prove that
19 Defendant knew what he was going to take once inside the home; the burglary statute
6 1 only requires proof of an authorized entry with the intent to commit theft. See NMSA
2 1978, § 30-16-3 (1971). We are persuaded that sufficient circumstantial evidence was
3 presented from which the jury could infer that Defendant entered the residence with
4 the intent to commit a theft that would assist in his escape. See State v. Muraida,
5 2014-NMCA-060, ¶ 18, 326 P.3d 1113 (“It is well established that the fact[-]finder
6 may infer from circumstantial evidence that the defendant acted with the requisite
7 intent; direct evidence of the defendant’s state of mind is not required.”); id.
8 (“Furthermore, a defendant’s knowledge or intent generally presents a question of fact
9 for a jury to decide.” (alteration, internal quotation marks, and citation omitted)).
10 Larceny
11 {8} Defendant argues that wearing Mr. Jaramillo’s clothing in Mr. Jaramillo’s home
12 is not sufficient evidence to prove that Defendant “carried away” the clothes or that
13 Defendant had the intent to permanently deprive Mr. Jaramillo of the clothes. See
14 Garcia, 2016-NMSC-034, ¶ 17 (“Jury instructions become the law of the case against
15 which the sufficiency of the evidence is to be measured.” (alteration, internal
16 quotation marks, and citation omitted)). The instruction for the charge of larceny
17 required the jury to find beyond a reasonable doubt that Defendant “took and carried
18 away various articles of clothing belonging to [Mr.] Jaramillo,” at which time,
19 Defendant “intended to permanently deprive the owner of it.” The jury was further
7 1 instructed, consistent with UJI 14-1603 NMRA, that “[c]arried away” meant “moving
2 the property from the place where it was kept or placed by the owner.”
3 {9} There can be little question that Defendant moved Mr. Jaramillo’s property
4 from where it was placed or kept when Defendant removed the clothes from Mr.
5 Jaramillo’s closet and put them on. Larceny does not require that property be removed
6 a far distance from where it was kept or placed by the owner, only that it was moved
7 from its owner-placed location with the intent to permanently deprive. See State v.
8 Clark, 2000-NMCA-052, ¶ 13, 129 N.M. 194, 3 P.3d 689 (describing the common-
9 law asportation requirement as not a literal “carrying away,” but moving, by available
10 means, any number of things (internal quotation marks and citation omitted)); see also
11 UJI 14-1601 NMRA; UJI 14-1603.
12 {10} We further believe that the circumstantial evidence gave rise to a reasonable
13 inference that Defendant intended to permanently deprive Mr. Jaramillo of the
14 clothing. The evidence indicates that Defendant put on Mr. Jaramillo’s clothing in the
15 course of his efforts to evade police, as we explained in our analysis of the evidence
16 of burglary. It would not assist Defendant’s efforts to leave the home in the more
17 easily identifiable clothes he was wearing when he entered the home. And
18 Defendant’s efforts to evade police would not be furthered by returning the clothing
19 to Mr. Jaramillo. Because Defendant’s actions show that he took extraordinary
8 1 measures to evade police and because permanently depriving Mr. Jaramillo of his
2 clothing was consistent with these efforts to avoid identification, we hold that
3 sufficient circumstantial evidence supports Defendant’s conviction for larceny. See
4 Muraida, 2014-NMCA-060, ¶ 18; State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M.
5 346, 950 P.2d 789 (“The reviewing court does not weigh the evidence or substitute
6 its judgment for that of the fact[-]finder as long as there is sufficient evidence to
7 support the verdict.”), abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-
8 020, ¶ 17, 148 N.M. 381, 237 P.3d 683. The jury was free to reject a theory that
9 Defendant did not intend to permanently deprive Mr. Jaramillo of his clothing. See
10 Rojo, 1999-NMSC-001, ¶ 19 (“Contrary evidence supporting acquittal does not
11 provide a basis for reversal because the jury is free to reject [th d]efendant’s version
12 of the facts.”).
13 2. There Was No Error in Refusing Defendant’s Jury Instruction
14 {11} Defendant contends that the district court erred by denying his jury instruction
15 that would have explained to the jury that it was required to find that Defendant had
16 a specific intent to commit theft “at the time of the claimed unauthorized entry into the
17 dwelling home[,]” and that if the jury found that such an intent “was formed after the
18 entry, the crime of burglary is not proved.” Defendant argues that he was entitled to
9 1 the instruction because the evidence supported it and his intent upon entry of Mr.
2 Jaramillo’s home was the contested issue at trial.
3 {12} We are not persuaded that the instruction given was confusing or Defendant
4 was denied the theory of his case that his intent was formed after entering the home,
5 if at all. The instruction given by the district court required the jury to find, in relevant
6 part, that Defendant “entered the dwelling [h]ouse with the intent to commit a theft
7 when inside[.]” This instruction tracks the language of the uniform jury instruction for
8 burglary with precision. See UJI 14-1630 NMRA. Our Supreme Court has stated that
9 uniform jury instructions are presumptively valid and, when they describe the
10 elements of a crime, they should be used without substantive alteration. See State v.
11 Lucero, 2017-NMSC-008, ¶ 30, 389 P.3d 1039. Additionally, in State v. Gunzelman,
12 1973-NMSC-055, ¶ 29, 85 N.M. 295, 512 P.2d 55, overruled on other grounds by
13 State v. Orosco, 1992-NMSC-006, ¶ 7, 113 N.M. 780, 833 P.2d 1146, our Supreme
14 Court held that a jury instruction that follows the language of the burglary statute to
15 proscribe the “unauthorized entry of any dwelling with the intent to commit any
16 felony or theft therein[,]” sufficiently instructs the jury on the specific criminal intent
17 required and no further description of the requisite criminal intent is necessary. See
18 id. ¶¶ 23-31 (omissions omitted). We agree with the district court in the current case
19 that there was no reason to deviate from UJI 14-1630 because it clearly instructed the
10 1 jury on specific intent by requiring a finding that Defendant “entered the dwelling
2 [h]ouse with the intent to commit a theft when inside[.]”
3 {13} Defendant does not demonstrate that the instructions were inadequate or
4 confusing; nor does he contend that the jury was given any reason to believe that it
5 was adequate to find the intent to commit a theft was formed after entering the
6 dwelling. Based on the foregoing, we are not persuaded that the district court erred by
7 refusing Defendant’s additional instructions.
8 3. It Was Not Error to Deny Defendant a Mistrial for Testimony That 9 Defendant Had Showered
10 {14} Because Defendant did not move for a mistrial, Defendant argues that it was
11 either fundamental or plain error for the district court to fail to order a mistrial when
12 Mr. Jaramillo testified that Defendant took a shower while in Mr. Jaramillo’s home,
13 because that testimony violated a court order, was prejudicial, irrelevant, and was not
14 based on personal knowledge.
15 {15} “In order to conclude that a matter not brought to the attention of the district
16 court constituted plain error, this Court must be convinced that admission of the
17 testimony constituted an injustice that creates grave doubts concerning the validity of
18 the verdict.” State v. Hill, 2008-NMCA-117, ¶ 21, 144 N.M. 775, 192 P.3d 770
19 (internal quotation marks and citation omitted). Similarly, yet even more stringently,
20 we employ the fundamental error exception to the preservation rule “only under
11 1 extraordinary circumstances to prevent the miscarriage of justice[.]” State v. Silva,
2 2008-NMSC-051, ¶ 13, 144 N.M. 815, 192 P.3d 1192 (internal quotation marks and
3 citation omitted). “Accordingly, we will use the doctrine to reverse a conviction only
4 if the defendant’s guilt is so questionable that upholding a conviction would shock the
5 conscience, or where, notwithstanding the apparent culpability of the defendant,
6 substantial justice has not been served.” Id. (internal quotation marks and citation
7 omitted). “Substantial justice has not been served when a fundamental unfairness
8 within the system has undermined judicial integrity.” Id. (internal quotation marks and
9 citation omitted).
10 {16} We are not persuaded that Mr. Jaramillo’s statement that Defendant took a
11 shower resulted in an injustice that would create grave doubts about the verdict or
12 undermine judicial integrity. That testimony was cumulative of other evidence that
13 suggested that Defendant had taken a shower. Mr. Jaramillo testified that he noticed
14 that the previously clean bathtub was dirty with mud after Defendant was found in Mr.
15 Jaramillo’s bathroom. Deputy Young testified that when Defendant was found, the
16 bathtub was wet, there was dirt or mud in the bottom of the tub, the same or similar
17 shorts to those worn by Defendant were in the bathroom, and Defendant’s skin was
18 moist and he appeared wet. We agree with the State that the testimony that Defendant
19 showered was a very reasonable inference to be drawn from the personal observations
12 1 of witnesses and that the specific testimony regarding his having taken a shower did
2 not cause an injustice.
3 {17} Additionally, the district court sustained Defendant’s objection to the testimony
4 and instructed the jury to disregard the statement. Even assuming that Defendant
5 showering in Mr. Jaramillo’s home could be properly seen as irrelevant to Defendant’s
6 plan to disguise himself in his efforts to evade police and that an instruction to
7 disregard the evidence was warranted, the district court’s failure to sua sponte declare
8 a mistrial was not error of any kind. See State v. Astorga, 2016-NMCA-015, ¶ 10, 365
9 P.3d 53 (acknowledging that objectionable testimony that is cumulative of other
10 evidence may be harmless and does not result in fundamental error); see also State v.
11 Hernandez, 2017-NMCA-020, ¶ 17, 388 P.3d 1016 (“Our case law acknowledges that
12 generally, a prompt admonition to the jury to disregard and not consider inadmissible
13 evidence sufficiently cures any prejudicial effect which might otherwise result.”
14 (omission, internal quotation marks, and citation omitted)).
15 4. Defendant’s Double Jeopardy Rights Were Not Violated by the 16 Enhancement of His Sentence
17 {18} Defendant contends that the district court’s use of a felon-in-possession
18 conviction and its predicate felony as separate offenses for enhancement purposes
19 contravened the intent of the habitual offender statute and subjected him to double
20 jeopardy. This broad view of the double use of a prior felony conviction for
13 1 enhancement purposes has been rejected by our case law. Defendant’s view relies on
2 State v. Haddenham, which held that the prohibited double use of a prior felony
3 occurred where a prior felony served simultaneously as both the predicate proof to
4 establish a defendant’s status as a felon in possession of a firearm and the basis for the
5 habitual offender enhancement of that same felon in possession of a firearm
6 conviction. 1990-NMCA-048, ¶¶ 14-21, 110 N.M. 149, 793 P.2d 279 (reversing the
7 enhancement under the habitual offender statute in large part based on the double use
8 of a felony to convict the defendant of felon in possession and to enhance his sentence
9 for that same conviction under different statutes).
10 {19} In State v. Yparrea, 1992-NMCA-128, ¶¶ 5-11, 114 N.M. 805, 845 P.2d 1259
11 this Court rejected the precise argument Defendant raises here under Haddenham. See
12 Yparrea, 1992-NMCA-128, ¶¶ 5-11 (holding that unlike Haddenham the prior
13 felonies in Yparrea were not used to prove the commission of the defendant’s
14 currently charged felonies, but the two prior felony convictions, including a
15 conviction for felon in possession of a firearm and its predicate felony conviction
16 were used properly to enhance the defendant’s separate convictions for burglary and
17 larceny). Additionally, more recently, in State v. Tafoya, 2012-NMSC-030, ¶¶ 56-57,
18 285 P.3d 604, our Supreme Court rejected an attempt similar to Defendant’s challenge
19 to his enhancements under Haddenham and held that where a prior felony is used as
14 1 a predicate offense to prove the defendant’s felon status and as a prior to enhance a
2 different conviction in the same case, double jeopardy is not violated. Like this Court
3 in Yparrea, our Supreme Court focused on the fact that the prior felony was enhancing
4 a different conviction, not doubly enhancing the felon in possession of a firearm
5 conviction. See Tafoya, 2012-NMSC-030, ¶ 57 (“Unlike Haddenham, the sentence
6 enhanced by the habitual offender statute in the present case was the separate crime
7 of attempted murder.”).
8 {20} In the current case, Defendant’s enhancements were even further removed than
9 those in Tafoya. Here, the district court enhanced Defendant’s sentence for residential
10 burglary based in part on a prior felony conviction and a prior felon in possession of
11 a firearm conviction that was created from that prior felony predicate. Nothing in our
12 case law or the habitual offender statute supports Defendant’s efforts to have his prior
13 felony offense ineligible to enhance any further convictions based on its use as the
14 predicate felony in the felon in possession of firearm conviction. See Yparrea, 1992-
15 NMCA-128, ¶ 9 (rejecting the same argument and holding that the habitual offender
16 statute “discloses a legislative intent authorizing the imposition of an enhanced
17 punishment upon individuals who continue to engage in criminal behavior resulting
18 in additional felony convictions following their initial convictions”). We hold that the
19 enhancement did not violate double jeopardy.
15 1 5. A Change in Venue Was Not Warranted
2 {21} Lastly, Defendant argues that the district court’s failure to order a change in
3 venue based on pretrial publicity caused fundamental error, and/or defense counsel’s
4 failure to request a change in venue constituted ineffective assistance of counsel.
5 {22} A district court may change venue in its discretion based on presumed or actual
6 prejudice. State v. Astorga, 2015-NMSC-007, ¶ 68, 343 P.3d 1245. Here, Defendant
7 contends that the record contains evidence of presumptive prejudice in light of the
8 publicity surrounding his other cases which he believes, demonstrates that he could
9 not receive a fair trial in Bernalillo County. “Presumed prejudice arises when evidence
10 shows that the community is so saturated with inflammatory publicity about the crime
11 that it must be presumed that the trial proceedings are tainted.” Id. (internal quotation
12 marks and citation omitted). Many factors relevant and specific to a particular case
13 should be considered by the district court when assessing prejudice from pretrial
14 publicity, including the neutrality of the publicity, its timing in relation to the start of
15 trial, its form and source, and the size of the community. State v. Gutierrez, 2011-
16 NMSC-024, ¶ 38, 150 N.M. 232, 258 P.3d 1024 (citing State v. House,
17 1999-NMSC-014, ¶¶ 59-75, 127 N.M. 151, 978 P.2d 967).
18 {23} Defendant’s failure to object to venue in the current case causes concerns on
19 appeal. First, if the pretrial publicity were so pervasive and inflammatory, then surely
16 1 proof to that effect would have been available and an objection to venue would have
2 been made at the time when the publicity became pervasive, in addition to defense
3 counsel’s insistence that the voir dire include questions to the potential jurors about
4 their knowledge of Defendant. Voir dire showed that none of the potential jurors even
5 knew of Defendant due to the media coverage or otherwise. Under these
6 circumstances, then, we cannot say that the district court was required to sua sponte
7 change venue due to Defendant’s publicity to avoid a miscarriage of justice under the
8 fundamental error standard. See Silva, 2008-NMSC-051, ¶ 13 (setting forth the
9 standard for fundamental error).
10 {24} Second, in the absence of an objection, there was no development of the record
11 on the relevant factors specific to this case upon which the district court or this Court
12 could assess prejudice. Development of the record as to the specific factors relevant
13 to Defendant would be particularly important in this case where whatever publicity
14 Defendant was concerned with did not relate to the current charges. As for the factors
15 generally applicable to a request for change in venue for pretrial publicity, the record
16 demonstrates only that Defendant was in the news for other incidents and that none
17 of potential jurors knew of Defendant from the news coverage. This is not a showing
18 of prejudice and is therefore insufficient to prove either a fundamental unfairness
19 required for fundamental error or a reasonable probability that the result of the trial
17 1 would have been different, required for a showing of prejudice in a claim for
2 ineffective assistance of counsel. See id.; State v. Dylan J., 2009-NMCA-027, ¶ 38,
3 145 N.M. 719, 204 P.3d 44 (explaining that for an ineffective assistance of counsel
4 claim to prevail, the defendant must demonstrate that his or her defense is prejudiced
5 if, as a result of the deficient performance, “there was a reasonable probability that the
6 result of the trial would have been different” (omission, internal quotation marks, and
7 citation omitted)). If Defendant wishes to pursue this matter, he should do so in habeas
8 proceedings where Defendant could develop the record with the necessary
9 information. See State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61
10 (stating that where “facts necessary to a full determination are not part of the record,
11 an ineffective assistance claim is more properly brought through a habeas corpus
12 petition”). We hold that Defendant has not demonstrated fundamental error or
13 established a prima facie claim of ineffective assistance of counsel.
14 CONCLUSION
15 {25} Based on the foregoing, we affirm the district court’s judgment and sentence.
16 {26} IT IS SO ORDERED.
17 18 J. MILES HANISEE, Judge
19 WE CONCUR:
18 1 2 LINDA M. VANZI, Chief Judge
3 4 MICHAEL E. VIGIL, Judge