P. v. Griesa
Filed 6/21/12 P. v.
Griesa CA3
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE DISTRICT
(Yuba)
----
>
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH PATRICK GRIESA, Defendant and Appellant. | C066058 (Super. Ct. No. CRF-08-458) |
In June 2009, a
jury convicted defendant Joseph Patrick Griesa of
employee and contributing to her delinquency, acquitted him of sexually
battering her, and was unable to reach verdicts on five other counts involving
her. The jury also found him guilty of
concealing a pair of 14-year-old runaways from their parents, and of
contributing to their delinquency. The
jury acquitted him of two counts of sexual offenses against two other
victims. In addition to these crimes
against the person, the jury convicted him of two counts each of failing to
file returns under the Unemployment
Insurance Code (UIC) or making required UIC payments.
The trial judge
subsequently recused herself when she learned of her former husband’s
“pivotal involvement . . . in the Griesa matter†as an attorney for
defendant in negotiations with the prosecutor before defendant’s indictment in
2008. The remainder of the Yuba
County bench disqualified itself
for unspecified reasons, and the Chief Justice assigned a retired Nevada
County judge to the case.
A year later,
the prosecution agreed to dismiss the five remaining charges involving the teen
employee. The trial court granted
defendant’s motion to reduce the concealment convictions to misdemeanors. The court denied his motion to strike the
requirement of registering as a sex offender.
It then suspended imposition of sentence and placed defendant on a
five-year probationary period (conditioned inter alia on a 270-day jail term).
On appeal,
defendant maintains that there is insufficient evidence to sustain his
convictions for contributing to the delinquency of the runaways because these
were premised on his inducing them to violate curfew and the prosecution did
not introduce any evidence regarding the pertinent curfew; the People concede
error. Defendant contends there is also
insufficient evidence that he concealed the runaways from their parents, or
that his conduct with his teenage employee within the statute of limitations
would have disturbed a reasonable person (layering claims of prosecutorial misconduct
and ineffective assistance of counsel upon the latter). In an argument one could charitably describe
as novel, defendant asserts the UIC claims are barred because the “governmentâ€
failed to exhaust its administrative remedies.
Finally, he raises the specter of instructional error in two of the UIC
counts, arguing one of them did not include the type of report that he had failed to file and the other entirely
failed to include the essence of the offense (the willful failure to
among the elements that were listed.
We shall reverse
defendant’s convictions for contributing to the delinquency of the runaways and
for failing to remit obligations due under the UIC. We shall affirm the remaining convictions,
and the order granting probation (with directions to amend the order to reflect
the statutory components underlying the penalty assessments in the aggregate
total of $1,140 ordered under Pen. Code, § 290.3).
FACTUAL AND PROCEDURAL BACKGROUND
The Teenage Employee
The teen
employee was born in 1990 and is known by a nickname (which we omit for reasons
of privacy). She began working in the
fall of 2006 for defendant’s towing company.
She succeeded her sister, who was pregnant and leaving the job. While the teen employee testified to
defendant’s course of physical and sexual abuse commencing after the office
Christmas party in 2006, all we need note (given the disposition of the
remainder of the charges) is that the prosecution tied the charge of annoying
or molesting her explicitly to a series of text messages that defendant
exchanged with her (and to a recorded phone call between them) in August
through November 2007. The conviction
for contributing to her delinquency is based on encouraging her to lie to the
police in the events involving the runaways, to which we next turn.
The Runaways
The two runaways
were 14. In November 2007, they slipped
out of the Linda home of one of their parents on the morning after a Friday
night sleepover, leaving a note saying that they wanted more freedom. At a florist shop, they met up with a tow
truck defendant had sent to pick them up, which took them to a football game in
Yuba City. Defendant was at the game
with one of their boyfriends, who had asked him to send the tow truck. He coached the boyfriend in football (and was
familiar as a result with his girlfriend), and the boyfriend was in his care
for the weekend.
Defendant had
tickets for a dinner dance that evening.
After the game, he dropped off the runaways, the boyfriend, and two
other teens at a park near his home about a half-hour before dark.
The runaways
testified they told defendant that they had absconded from home. He urged them to call their parents, but did
not otherwise act on this information. They
testified defendant said they could stay at his house for the evening after he
left with his wife. He spoke with them
later on the phone, telling them to lock themselves in his son’s room before he
got home so that his wife would not see them.
They told him that they had not yet called their parents. He again urged them to do so, because one of
their mothers, who knew defendant, had left him a voice mail asking if he knew
her daughter’s whereabouts.
name="_ftnref2" title="">[2]
Defendant
testified that when he dropped off the group at the park, he had told the
boyfriend to return to defendant’s house when it got dark, and never told the
runaways to go to his home. When he
returned home, he assumed they had gone home.
Defendant
testified he woke early Sunday morning; in checking on his sons, he found that
the runaways were in his older son’s room with the son and the boyfriend. He told them they had to leave before his
wife woke up. He drove them to a
fast-food restaurant in Marysville.
During the ride, he got some cash for them for food and discussed why
they had run away. He dropped them off
at the restaurant at about 6:00 a.m.
The runaways
called defendant later that morning and told him they did not know what to
do. He said they could stay for a while
at his towing business. They walked over
there, after calling their parents and telling them not to worry (without
letting them know where they were). An
employee let them in, defendant having told her to expect them. The employee testified that she had been
watching for the girls to arrive after defendant’s call, and saw a car
resembling defendant’s distinctive vehicle drop them off at the business. The teenage employee also testified that the
girls had told her that defendant had dropped them off at the business after
they spent the night at his house.
When the teenage
employee arrived at work that morning, the other employee told her defendant
had dropped off the two girls and said to call him about them when she
arrived. The teenage employee testified
defendant told her only that if anyone asked about their presence, she should
say they were trainees. Defendant
testified he had told the teenage employee not to get involved with the two
girls.
Two police
officers arrived shortly afterward. A
citizen had flagged them down to report juvenile runaways being on the
premises. The teenage employee told them
the two girls were trainees and were not minors. In speaking to the officers outside, the
girls admitted being minor runaways. The
officers confronted the teenage employee with this information, who admitted
that defendant had brought them there.
When the officers called defendant, he denied any knowledge of the
presence of the runaways, at which point the officers arrested the teenage
employee. The officers called the
parents,
who came to pick up the girls.
UIC Evidence
A supervising
state investigator of employment tax evasion explained that an employer is
required to report any quarterly wages to an employee in excess of $100. On these wages, the employer is required to
collect and remit employer taxes for unemployment and retraining benefits, and
employee payments for disability and income tax. The investigator noted that “unemployment
insurance tax, training tax, and the . . . personal income tax†have
their statutory basis in division 1 of the UIC and “[d]ivision 6 then falls
into your disability insurance.â€
name="_ftnref4" title="">[4] A failure to account properly for
contributions from a specific employee can lead to a denial of benefits when
that employee files a claim. The state
investigator had reviewed his department’s records for defendant’s business
from the first quarter of 2004 through the third quarter of 2008. He did not find any wages reported in that time period for the teenage employee (or
two other names about whom the prosecutor asked). He did, however, find reports for the teenage
victim’s sister from the first
quarter of 2006 through the third quarter of 2007, long after she had left
defendant’s employ in the third quarter of 2006.
As defendant admitted
to a prosecution investigator, he paid the teen victim under her sister’s
name. At trial, he claimed he did not
have the necessary information for the teen employee, because at the outset he
thought she was going to fill in for her sister only intermittently. The sister testified, however, that defendant
did this over her objections in order to help the teen employee qualify for
financial aid. This resulted in the
sister’s liability for reimbursing the disability payments that she had
received while on maternity leave.
As for the other
two employees who were the subject of the state investigator’s testimony,
they themselves testified they had
worked for defendant during the time period reviewed and received wages in both
cash and checks. One of them testified
that her checks always reflected the proper deductions (and her name in fact
appeared in the records that the state investigator submitted as an exhibit,
contrary to his testimony). The other
testified that during her brief tenure her wages never had withholdings
deducted. Defendant’s office manager
testified that she was aware he was paying three or four female employees
“under the table.â€
Defendant denied
that one of the other two employees about whom the state investigator testified
had ever worked for him. He admitted
that he never placed the teen employee on his payroll under her correct
name. He also admitted issuing
handwritten payroll checks from time to time for employees who were in need of
cash. He claimed that he did not willfully
fail to deduct the proper withholdings in these checks; it was simply a matter
of sloppiness in accounting for them.
DISCUSSION
I. Sufficiency
of Evidence
A. Contributing to the
Delinquency of the Runaways
“Every person
who . . . induces or endeavors to induce any person under the age of
18 years . . . to follow any course of conduct . . . as
would cause or . . . tend to cause that person to become [a dependent
or delinquent under the jurisdiction of the juvenile court] . . . is
guilty of a misdemeanor . . . .â€
(Pen. Code, § 272, subd. (a)(1).)
The trial court accordingly instructed the jury in connection with the
runaways that “[t]o prove the [d]efendant is guilty of this crime, the People
must prove that [he] by act or persuasion induced or tried to induce a minor to
. . . follow any course of conduct that would cause or
. . . tend to cause that person to become a delinquent child of the
juvenile court. . . . [¶] . . . [¶] A delinquent child is a minor who has
violated curfew based solely on age.
[(Welf. & Inst. Code, § 601, subd. (a).)]â€
Defendant
asserts the record lacks any evidence of the actual curfew in either Marysville
(the location of defendant’s place of business and the fast-food restaurant) or
Yuba City (the location of the football game, the park, and defendant’s home),
or any evidence that the runaways were in a public
place in Marysville between 11:00 p.m. and sunrise (see Marysville Mun.
Code, tit. 9, § 9.40.020) or between the hours of 10:00 (now 11:00) p.m.
and 5:00 a.m. in Yuba City (former Yuba City Mun. Code, tit. 4, ch. 8, § 5‑8.01). (He also contends there is insufficient
evidence that he induced the runaways
to violate any curfew, but we do not need to resolve this claim.)
The People
concede “[t]here is merit to this claim.â€
They admit “[a]t trial, there was no evidence of a curfew†and “[n]o
evidence of a curfew was argued in closing.â€
We shall accept
the People’s concession. We therefore
will reverse the convictions in counts XIII and XIV and direct the trial court
to dismiss them. (People v. Hatch (2000)
22 Cal.4th 260, 271-272.)
B. Intent to Conceal the
Runaways from Their Parents
Defendant argues
that while the evidence demonstrated his awareness that the girls were
runaways, it was insufficient to demonstrate his intent to conceal them from
their parents, as he repeatedly encouraged them to call their parents. His reading of the evidence is not in accord
with the requirement that we must evaluate its sufficiency in a manner
favorable to the judgment. (
Crediting the
testimony of the runaways, defendant gave them an invitation to stay at his
home, unbeknownst to his wife, at a time that he knew at least one of their
mothers was trying to find them. He did
not inform this mother of the location of her daughter until just after the
police had located the runaways and contacted the parents. This is sufficient to demonstrate his
intentional participation in the girls’ concealment of themselves from their
parents. We accordingly reject his claim
of error.
C. Annoying the Teenage
Employee
As noted above,
the annoyance conviction was premised on text messages defendant exchanged with
his teenage employee between August and November 2007. The indictment was filed on October 1,
2008. Defendant concedes that a jury
evaluating the overall evidence “could conclude that [he] had violated the
statute.†He argues, however, that the
evidence of texts within the one-year
statute of limitations demonstrated only that the 43-year-old defendant was
professing his amorous attraction to the 17-year-old victim, which is not an
act that would unhesitatingly irritate a reasonable person as is required to
support a conviction. (
of the acceptability of his attentions toward the minor, the flaw in
defendant’s argument (and the response of the People to it) is a failure
to take into account that his acts were a continuing
course of conduct with the teenage employee, for which reason we asked the
parties for additional letter briefing on the issue.
The limitations
period for a continuing offense does not begin to run until the
complete. (People v. Terry (2005)
127 Cal.App.4th 750, 763.) Whether
a series of acts constitute a continuing offense is a question of statutory
interpretation, taking into account likely legislative intent in light of the
nature of the crime. (
In the context of deciding if a unanimity instruction was necessary,
annoyance is such an offense. The People
now adopt this as their response to defendant’s argument.
Conceding that a
continuing course of conduct keeps the limitations period from barring
prosecution for an offense if any of the individual acts constituting it are
timely, defendant nonetheless asserts this is irrelevant to “what evidence the
jury should be able to hear to support a particular charge.†As he frankly admits, however, he cannot find
any authority for excluding evidence of the individual acts in a course of
conduct that would have been time-barred on their own, and we cannot conceive
of any cogent reason to do so. We thus
reject his claim of insufficient evidence, given his concession that the course
of conduct as a whole was sufficient
to convict him.
In light of this
resolution, we reject his suggestion that it was misconduct for the prosecution
to submit evidence of the texts that he claims were outside the statute of
limitations and to rely on them emphatically in closing argument. By the same token, trial counsel was not
ineffective in failing to object to the admission of this evidence, or to the
argument of the prosecutor that emphasized it.
II. UIC
Convictions
A. Subject Matter
Jurisdiction
Defendant
contends (in essence) that the existence of an administrative forum in which to
recover his unpaid obligations under the UIC divested the trial court of
jurisdiction in the first instance to prosecute him criminally. He cites general principles pertinent to
exhaustion of administrative remedies, a fundamental jurisdictional tenet
that exists to prevent a court’s interference with the subject matter
jurisdiction of another tribunal. (
applies the doctrine of exhaustion to divest the jurisdiction of a
superior court over a criminal
prosecution.
This argument
strays so far from the bounds of exhaustion jurisprudence that there does not
appear to be authority that directly refutes it (nor have the People identified
any). However, we note three vaguely
analogous cases.
In the first
case, an administrative agency was free to seek injunctive relief in court
before exhausting the administrative process in which it was seeking to revoke
real estate licenses; the case distinguished the exhaustion doctrine as
“pertain[ing] to private persons seeking to invoke judicial action against a
public official; here[,] a public official is seeking judicial action against
private persons to end a violation of law,†and noted the Legislature had not
indicated it was necessary to have initial resort to the administrative
process. (People ex rel. Savage v.
77-78.)
The other two
cases recognize the power of a district attorney (in civil enforcement proceedings) to initiate court proceedings
against a party independent of any administrative action an agency might take
against the same party.
Automotive Repair (1997) 53 Cal.App.4th 1491 flatly stated that
“commencement of an administrative action to suspend or revoke a license
does not restrain the authority of a district attorney to prosecute a[] [civil]
action,†pointing out “the administrative action and the civil action are two
was not fundamentally unfair to have successive prosecutions. (Setliff
Bros., at pp. 1495-1496, italics added.) Setliff
Bros. cited People v. Casa Blanca
Convalescent Homes, Inc. (1984)
159 Cal.App.3d 509, which declined to apply equitable estoppel against a
district attorney based on an administrative agency’s conduct in overseeing a
nursing home, concluding that the administrative agency “has no authority to
bind the district attorney . . . in the enforcement of law. The enforcement of administrative regulations
and the civil proceedings to compel the cessation of unlawful . . .
practices are two separate legal
processes involving two separate,
not prevent another from performing official acts required by law.†(159 Cal.App.3d at p. 531, italics
added.)
We think this
sufficient to refute defendant’s claim that “the State†or “the government†had
any constraint on the forum or type of remedy it could initially seek against
him. In any event, his lack of apposite
authority forfeits the contention. (People v. Oates (2004) 32 Cal.4th
1048, 1068, fn. 10; Imagistics
Internat., Inc.
Department of General Services (2007) 150 Cal.App.4th 581, 591, fn. 8,
593.)
B. Failure to Pay Accrued Obligations
UIC section
2118.5 imposes criminal sanctions for failure to remit collected withholding
taxes: “Any person [who must] collect,
account for, and pay over any tax . . . required to be withheld[,]
who willfully fails to collect or truthfully account for and pay over the
tax[,] . . . shall . . . be guilty of a felony
. . . .â€
name="_ftnref6" title="">[6] The indictment charged a “willful failure to
pay over required tax†(boldface and uppercase omitted) in violation of this
statute in count XVIII.
The special
instruction on this count provided, in part, “Defendant is charged in Count
XVIII with willful failure to pay over required tax, a violation of [UIC]
Section 2118.5. [¶] To find the Defendant guilty of this count,
the following must be proved:
. . . two, the Defendant willfully and with the specific
intent to evade division 6 taxes . . . failed to file returns . . . ; or three, the
Defendant willfully and with the specific intent to evade taxes imposed under
the [UIC] made . . .
As defendant
points out, the instruction required the jury to find only that defendant
either failed to file or filed false accountings
of required withholdings. The former is
not an element even relevant to this
statute, and the latter is insufficient of itself to establish a violation
without the failure to pay over what had been collected without
of the offense: a willful failure to remit the withheld taxes.
The People do
not attempt to defend the instruction.
They simply contend the error was harmless, because “the evidence was
undisputed and in large part confirmed by [defendant]†and the evidence
otherwise “does not rationally lead to a contrary finding with respect to the
misinstruction.â€
that a failure to instruct on elements of an offense is subject to the
traditional test for harmless error under the state Constitution, though the
federal Constitution imposes a superseding standard: A reviewing court may find an instructional
error that misdescribes or omits an element of an offense to be harmless beyond
a reasonable doubt in light of the whole record except where the error results
in a so-called structural error, such as misstating the burden of proof (which
undermines every finding) or failing to instruct on substantially all of the
elements of the offense. (Flood,
pp. 489-490, 502-503 & fn. 20.)
In the present case, the
removing the central element of the offense from the jury’s consideration. This is akin to the failure to instruct on
any element of robbery other than the need for a specific intent to deprive an
owner permanently of property, which People
v. Cummings (1993) 4 Cal.4th
1233, 1311-1312, 1315 (cited with approval in Flood, supra,
18 Cal.4th at p. 503, fn. 20, as an example of structural error),
found was not subject to harmless error analysis. As such, it is reversible per se.
In any event, we
do not agree that the error was harmless beyond
a reasonable doubt. This state of
certainty on our part exists where the evidence is relatively uncontroverted
and any reasonable juror would have found the omitted element to exist. (Flood,
supra, 18 Cal.4th at
pp. 501-502.) In connection with
reminding the jury of the need to agree unanimously on the basis for the four
UIC counts, defense counsel highlighted the first employee who testified her
checks had the proper deductions and who in fact appeared in the investigator’s
records (the prosecutor did not even refer to this employee in his own closing
argument as a basis for any of the UIC counts), and otherwise asserted that the
prosecutor had left too many loose ends overall: “[W]ho are we talking about and for
which time periods?
. . . [T]he Prosecution hasn’t put before you, I would
argue, sufficient evidence of which people in which time periods and which
taxes to justify a conviction for these tax counts.†Defendant had contested the status of a
second person as an employee during her brief time at his business. As for the teenage employee, defendant points
out on appeal that the jury could reasonably find that he did not intentionally
fail to remit the accrued obligations
for her and instead merely caused them to be credited to the wrong
account. Finally, although it was hardly
compelling evidence, the jury may have given credence to his testimony that
defendant was at worst negligent rather than willful about his accounting
failures.
All in all, this
is not a record on which we are confident that this was nonprejudicial error on
the issue of a willful failure to pay that defendant actively contested. We will therefore reverse the conviction on
count XVIII for retrial if the prosecution so desires.
C. Failure to Account
As we have
earlier noted, division 1 of the UIC is concerned with employer taxes for
unemployment insurance and employment retraining, and the disability tax on
employees. (UIC, §§ 976, 976.6,
984.) UIC section 2109 criminally
penalizes any person who “willfully fails to submit . . . reports
required by this division.†UIC section
2117.5 is again derived from former division 6 relating to withholding taxes
(Stats. 1980, ch. 1007, § 64, p. 3228), and sanctions “[a]ny person
who . . . willfully fails to file any return . . . with
intent to evade any tax imposed by this code†or files false information.
The indictment
charged violations of the two statutes under counts XV and XVII, respectively,
distinguishing the offenses as involving reports under divisions 1 and 6. The prosecutor—in four scant pages of closing
argument—broached the entire subject of UIC violations apologetically, noting
only that they were based on the failure to report and remit four types of
taxes under divisions 1 and 6 of the UIC, so that the four counts were premised
on a failure to report and remit division 1 taxes and a failure to report and
remit division 6 taxes. He tied these
violations to the second employee paid under the table and the teen
employee.
In connection
with count XV and UIC section 2109, the instruction specifically described the
reports as being required under division 1.
For count XVII and UIC section 2117.5, however, the special instruction
provided only that the jury must find wage payments to one or more employees
for which “[d]efendant willfully failed to file the proper returns,†without
specifying that it was referring to returns required under division 6. Defendant argues the jury as a result could
have convicted him on both counts based on the same conduct under division 1,
rather than distinguishing between the types of report involved. The People again concede without any
elaboration that the instruction for count XVII was erroneous, but contend it
was harmless.
Here, we agree
with the People. The evidence at trial
does not reveal any active dispute on defendant’s part over the
the jury to distinguish in any way between the reports of division 1 taxes and
division 6 taxes. His defenses, which we
just summarized above, were aimed at the lack of a willful failure to file
reports for the teen employee, and the nonemployee status of the other
person. The issue as thus framed was
simply an up-or-down decision for the jury and, had the jury credited either of
these defenses, it would not have found defendant guilty on
instruction was more a matter of ambiguity than the omission of a material
element, and the brief argument of the prosecutor clearly distinguished between
the facts necessary for each verdict.
Therefore, we believe beyond a reasonable doubt that a properly instructed
jury would have convicted defendant under these counts (counts XV and XVII),
and reject his argument to the contrary.
III. Penalty
Assessments
In the
circumstance of a defendant sentenced to prison, the abstract of judgment gives
directions
to carry out its provisions (People v.
185; In re Black (1967)
66 Cal.2d 881, 889-890), and therefore it must summarize the judgment
accurately (People v.
380, 387-388; People v.
1329, 1332; People v.
1080). In People v. High (2004)
119 Cal.App.4th 1192, we recognized that “a detailed recitation of all the
fees, fines, and penalties on the record may be tedious,†but the law “does not
authorize shortcutsâ€; thus an abstract of judgment must include a list of
statutory authorization, in order that a collections entity can fulfill its
duty to collect and forward assessments to the appropriate agency. (119 Cal.App.4th at pp. 1200,
1201.)
While it is
permissible for the oral rendition of judgment to refer collectively to an
aggregate amount of a fine and the various county-specific penalty assessments,
this is true only where the trial court clerk assumes the responsibility for
the specification of the breakdown in the court’s minutes. (People
v. Sharret (2011)
191 Cal.App.4th 859, 864.)
In the present
case, the order granting probation serves the same purpose for the county’s
collections agency. Neither the
probation report, the oral rendition of judgment, the order granting probation,
nor the court’s minutes reflect the breakdown of assessments that are specific
to Yuba County. We therefore will direct the trial court
to issue an amended order granting probation that expressly states the
breakdown of amounts and statutory bases for the aggregate $1,140 imposed in
connection with the sex offender fee (Pen. Code, § 290.3) and its penalty
assessments.
DISPOSITION
The convictions
for contributing to the delinquency of the runaways (counts XIII and XIV) are
reversed with directions to dismiss them.
The conviction for failure to remit withholding taxes (count XVIII) is
reversed; if the prosecution does not file a notice of intent to retry it
within 30 days after the issuance of our remittitur, the trial court shall
dismiss that count as well. The
remaining convictions and order granting probation are affirmed. The trial court is directed to prepare an
amended order granting probation that includes a breakdown of
the amounts and statutory bases of the penalty assessments
on the sex offender fee.
BUTZ , J.
We concur:
BLEASE , Acting P. J.
DUARTE , J.
name="_ftn1" title="">[1] As a result of the registration requirement
and jail sentence, defendant received credit only for his one day of actual
custody without any conduct credits because he did not serve the necessary
increment of days of actual custody.
(Pen. Code, former § 4019, subds. (b)(2), (c)(2) & (f) [Stats.
2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50] [four days]; accord, former
Pen. Code, §§ 2933, subd. (e)(3) & 4019, subds. (b), (c) &
(f) [Stats. 2010, ch. 426, §§ 1, 2, eff. Sept.
28, 2010] [four days] and present Pen. Code,
§ 4019, subds. (b), (c), (f) & (h) [Stats. 2011, 1st Ex. Sess.,
2011-2012, ch. 12, § 35, operative Oct. 1, 2011] [two days].)
name="_ftn2" title="">[2] The mother knew defendant through her
daughter (who had been to defendant’s house before with the boyfriend), and he
was a regular customer of her flower shop as well.
