P. v. Welch

 

 

 

 

 

 

 

 

 

 

 

 

Filed 11/25/13  P. v. Welch CA6

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

SIXTH APPELLATE
DISTRICT

 

 
>

THE PEOPLE,   Plaintiff and Respondent,   v.   KENDYL WELCH,   Defendant and Appellant.

H039086      (Santa Clara County       Super. Ct. No. 211349)

 

Appellant Kendyl Welch was committed to the
custody of the Department of State Hospitalshref="#_ftn1" name="_ftnref1" title="">[1] for an
indeterminate term in 2010, after a jury found him to be a “sexually violent
predator” (SVP) within the meaning of the Sexually
Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.).href="#_ftn2" name="_ftnref2" title="">[2]  This court rejected all but one of his
challenges to the order of commitment and remanded the case “for the limited purpose of
reconsidering Welch’s equal protection claim in light of [People v.] >McKee [(2010) 47 Cal.4th 1172 (>McKee I)”] once the proceedings in that
case became final.  (People v. Welch (Apr. 3, 2012, H035567) [nonpub. opn.] (>Welch I).)  The California Supreme Court denied Welch’s
petition for review.  (>Welch I, supra, review den. June 27, 2012, S202473.)

Meanwhile, the trial court on remand in >McKee I held an evidentiary hearing on
McKee’s equal protection claim, rejected it, and committed him as an SVP.  The Fourth District Court of Appeal affirmed,
and the California Supreme Court denied review. 
(People v. McKee (2012) 207
Cal.App.4th 1325, 1347-1348 (McKee II),
review den. Oct. 10, 2012, S204503.)

With the decision in McKee II final, the trial court committed Welch to the custody of
the DSH “as previously ordered.”  Welch
filed a timely notice of appeal from the trial court’s November 9, 2012
order.  He contends that (1) “>McKee II is not binding on [him] because
he is dissimilarly situated from McKee and is entitled to his own evidentiary
hearing” and that (2) “the McKee II court
incorrectly applied the law regarding the alleged href="http://www.mcmillanlaw.com/">equal protection violation.”  We affirm.

 

I. 
Background

Since the facts of Welch’s crimes are
irrelevant to the issues he raises on appeal, we do not repeat them.

 

II. 
Discussion

A. 
The SVPA and Proposition 83

The SVPA provides for the involuntary civil
commitment of persons found to be SVP’s beyond a reasonable doubt at trial.  (People
v. Williams (2003) 31 Cal.4th 757, 764.)  An SVP is “a person who has been convicted of
a sexually violent offense against one or more victims and who has a diagnosed
mental disorder that makes the person a danger to the health and safety of
others in that it is likely that he or she will engage in sexually violent href="http://www.fearnotlaw.com/">criminal behavior.”  (§ 6600, subd. (a)(1).)

The SVPA as originally enacted provided for
a two-year commitment, renewable for successive terms if the People proved
beyond a reasonable doubt at a new trial that the committed person remained an
SVP.  (Former § 6604, Stats. 1995, ch.
763, § 3.)  There were two ways an SVP
could obtain review of his or her current mental condition to determine if
civil confinement was still necessary.  (>People v. Cheek (2001) 25 Cal.4th 894,
898 (Cheek).)  Former section 6608 permitted the SVP to
petition, without the concurrence of the DSH, for conditional release to a community treatment program.  (Cheek,
at p. 898.)  Former section 6605, which
called for an annual review of a committed SVP’s mental status, provided a
procedure that, with the concurrence of the DSH, could lead to unconditional
release.  (Cheek, at p. 898.)

The SVPA was amended in 2006 by Proposition
83.  (McKee
I, supra, 47 Cal.4th at p. 1183.)  Among
other modifications, “Proposition 83 also change[d] an SVP commitment from a
two-year term to an indefinite commitment.”  (McKee I,
at p. 1186.)  Under the amended SVPA,
“[a]n SVP can only be released conditionally or unconditionally if the [DSH]
authorizes a petition for release and the state does not oppose it or fails to
prove beyond a reasonable doubt that the individual still meets the definition
of an SVP, or if the individual, petitioning the court on his own, is able to
bear the burden of proving by a preponderance of the evidence that he is no
longer an SVP.  In other words, the
method of petitioning the court for release and proving fitness to be released,
which under the former Act had been the way an SVP could cut short his two-year
commitment, now becomes the only means of being released from an indefinite
commitment when the [DSH] does not support release.”  (McKee
I, at pp. 1187-1188.)

 

B. 
Equal Protection and the McKee I
and McKee II Decisions

Both the federal and state Constitutions
guarantee the right to equal protection of the laws.  (U.S. Const., 14th Amend.; Cal. Const., art.
I, § 7.)  â€œ ‘ “ ‘The concept of the equal protection of the laws compels
recognition of the proposition that persons similarly situated with respect to
the legitimate purpose of the law receive like treatment.’ ” 
[Citation.]  â€œThe first
prerequisite to a meritorious claim under the equal protection clause is a
showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.”  [Citations.]’
”  (McKee I, supra, 47
Cal.4th at pp. 1218-1219.)

In McKee I, the California Supreme Court held that SVP’s, MDO’s (Pen. Code,
§ 2960 et seq.), and NGI’s (Pen. Code, § 1026 et seq.) are similarly
situated.  (McKee I, supra, 47 Cal.4th at pp.
1203, 1207.)  The court also concluded that
McKee’s disparate treatment claim required application of the strict scrutiny
standard.  (Id. at pp. 1197-1198.)  â€œBecause
neither the People nor the court below properly understood this burden,” the >McKee I court decided, the People would
have an opportunity to make the appropriate showing on remand.  (>Id. at pp. 1207-1208.)  â€œIt must be shown that, notwithstanding the
similarities between SVP’s and MDO’s, the former as a class bear a
substantially greater risk to society, and that therefore imposing on them a
greater burden before they can be released from commitment is needed to protect
society.”  (Id. at p. 1208.)  This
could be shown in a variety of ways, the court explained, including by
demonstrating that the “inherent nature of the SVP’s mental disorder” makes recidivism
by SVP’s “significantly more likely” or that “SVP’s pose a greater risk to a
particularly vulnerable class of victims.”  (Ibid.)
 The court directed the People on remand
“to justify Proposition 83’s indefinite commitment provisions . . . and
demonstrate that they are based on a reasonable perception of the unique
dangers that SVP’s pose rather than a special stigma that SVP’s may bear in the
eyes of California’s electorate.”  (Id.
at p. 1210.)

On remand, the trial court conducted a 21-day
evidentiary hearing.  (See McKee II, supra, 207 Cal.App.4th at p. 1330.)  Experts testified that SVP’s have a higher
risk of recidivism, that victims of sexual offenses suffer “unique and, in
general, greater trauma” than victims of nonsex offenses, and that SVP’s “are
significantly different from MDO’s and NGI’s diagnostically and in treatment.”  (Id. at
pp. 1340-1347.)  Concluding that this
justified the disparate treatment of SVP’s, the trial court rejected McKee’s
equal protection claim.  (>McKee II, at p. 1330.)

The Court of Appeal reviewed the evidence de
novo.  (McKee II, supra, 207
Cal.App.4th at pp. 1340-1347.)  The court
concluded that “the People on remand met their burden to present substantial
evidence, including medical and scientific evidence, justifying the amended
Act’s disparate treatment of SVP’s (e.g., by imposing indeterminate terms of
civil commitment and placing on them the burden to prove they should be
released).  (McKee [I], supra, 47 Cal.4th at p.
1207.)  The People have shown that,
‘notwithstanding the similarities between SVP’s and MDO’s [and NGI’s], the
former as a class bear a substantially greater risk to society, and that
therefore imposing on them a greater burden before they can be released from
commitment is needed to protect society.’  (Id. at p. 1208.)  The People have shown ‘that the inherent
nature of the SVP’s mental disorder makes recidivism as a class significantly
more likely[;] . . . that SVP’s pose a greater risk [and unique dangers] to a
particularly vulnerable class of victims, such as children’; and that SVP’s
have diagnostic and treatment differences from MDO’s and NGI’s, thereby
supporting a reasonable perception by the electorate that passed Proposition 83
that the disparate treatment of SVP’s under the amended Act is necessary to
further the state’s compelling interests in public safety and humanely treating
the mentally disordered.  [Citation.]”  (McKee II, at p. 1347.)

 

C. 
Welch’s Contentions

Welch contends that the McKee II court’s findings and conclusions bind only McKee.  He maintains that he has a due process right
to present evidence and to argue at trial that a life commitment cannot validly
be imposed on him.  We disagree.

Welch first argues that he and McKee are
“dissimilarly situated” because his victims were adult women while McKee’s
victims were children.  An argument based
on the same distinction was rejected in People
v. McKnight (2012) 212 Cal.App.4th 860 (McKnight).  We agree with the McKnight court that the analysis and holding in >McKee II do not turn on concerns
specific to child predators.  (>McKnight, at p. 863; see >McKee II, supra, 207 Cal.App.4th at p. 1347 [stating multiple bases for the
court’s finding that SVP’s as a class bear a substantially greater risk to
society, which warrants imposing a greater burden on them before they can be
released from commitment].)

Welch next argues that the California
Supreme Court “did not purport to resolve definitively the constitutionality of
the SVP law” but on the contrary “implicitly determined” in >McKee I that an equal protection
judgment must be made in each case on an as applied rather than a class
basis.  We disagree.

Other courts have rejected this argument,
and properly so.  (E.g., >McKnight, supra, 212 Cal.App.4th at pp. 863-864; People v. McDonald (2013) 214 Cal.App.4th 1367, 1378 (>McDonald).)  As the McKnight
court explained, the McKee I court “recognized
that the People could attempt to justify the Act’s disparate impact in a
variety of ways, and that these included showing that SVP’s as a class are
significantly more likely to reoffend than MDO’s or NGI’s, showing they pose a
greater risk to children (in which case the equal protection analysis would
apply only to child predators), or by other, unspecified means.  [Citation.]  In light of that recognition, the Court transferred
the multiple ‘grant and hold’ cases under McKee I, including this one,
to the Courts of Appeal with directions to vacate their prior opinions and
suspend further proceedings until the McKee I remand proceedings were
final, ‘in order to avoid an unnecessary multiplicity of proceedings.’  [Citations.]  On remand, McKee [II] concluded that differences between SVP’s as a class and
other offenders justify their different treatment under the Act.  It is plain that McKee II is not to be
restricted to [McKee] alone or only to those SVP’s convicted of crimes against
children . . . , but rather its holding applies to the class of SVP’s as a
whole.”  (McKnight, at pp. 863-864; accord, McDonald, at p. 1378.)  We
agree with the McKnight and >McDonald courts’ conclusion that the high
court’s emphasis on classwide proof, together with its suspension of activity
in grant-and-hold cases to avoid an unnecessary multiplicity of proceedings,
demonstrates that it intended the equal protection challenge to the amended
SVPA be resolved on a class basis in McKee
II.  (McKnight, at pp. 863-864; McDonald,
at p. 1378.)

Welch next argues that the >McKee II court improperly applied a
deferential rather than a de novo standard of review, as evidenced by its
discussion of the applicable standard, which “referred . . . three times to the
‘substantial evidence’ standard.”  We
disagree.

A court applying the deferential substantial
evidence standard of review “ â€˜must
view the evidence in a light most favorable to [the judgment] and presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.’  [Citation.]”  (People v. Johnson (1980) 26 Cal.3d
557, 576; see Jackson v. Virginia (1979) 443 U.S. 307, 318-320.)  That is not what the McKee II court did here.

Addressing the standard of review, >McKee II court stated that “McKee
asserts, and we agree, that we review de
novo the trial court’s determination whether the Act, as amended by
Proposition 83, violates his equal protection rights.  We independently
determine whether the People presented substantial, factual evidence to
support a reasonable perception that SVP’s pose a unique and/or greater danger
to society than do MDO’s and NGI’s, thereby justifying the disparate treatment
of SVP’s under the Act.”  (McKee II, supra, 207 Cal.App.4th at p.
1338, italics added.)  The court rejected
the People’s argument that it should defer to the trial court’s findings of
historical fact and credibility determinations. 
(Id. at p. 1338,
fn. 3.)  Observing that “the trial
court’s statement of decision did not make any express findings regarding
disputed historical facts or the credibility of certain witnesses,” the court
declared that it was “in as good a
position as the trial court to decide whether the evidence presented by the
People during the remand hearing satisfied their burden to justify the
disparate treatment of SVP’s under the Act.” 
(Ibid., italics added.)  The court ultimately agreed with the trial
court that the People had produced substantial
evidence to justify the disparate treatment.  (Id. at pp. 1330-1331.)  The McKee
II court’s review was plainly de novo.

The McKee
II court’s statement that “[i]n independently reviewing the evidence
admitted at the remand hearing, we must determine whether the People presented substantial
evidence to support a reasonable inference or perception that the Act’s
disparate treatment of SVP’s is necessary to further compelling state interests”
does not compel a contrary conclusion.  (McKee
II, supra, 207 Cal.App.4th
at p. 1339.)  The quoted statement’s
reference to “substantial evidence” reflects nothing more than the McKee II
court’s adherence to the standard the high court directed it to follow.  In McKee I, the high court explained
that “[w]hen a constitutional right, such as the right to liberty from
involuntary confinement, is at stake, the usual judicial deference to
legislative findings gives way to an exercise of independent
judgment of the facts to ascertain whether the legislative body ‘ “has drawn reasonable inferences based
on substantial evidence.”
’  [Citations.]”  (McKee I,
supra, 47 Cal.4th at pp. 1206-1207.)  The McKee II court
followed this standard.

Welch next complains that the >McKee II court applied a rational basis
rather than a strict scrutiny test.  We
disagree.

In McKee I, the high court directed the trial court to apply the equal
protection principles articulated in In re Moye (1978) 22 Cal.3d
457 (Moye) and related cases
discussed in McKee I to determine
whether the People “can demonstrate the constitutional justification for
imposing on SVP’s a greater burden than is imposed on MDO’s and NGI’s in order
to obtain release from commitment.”  (>McKee I, supra, 47 Cal.4th at pp. 1208-1209.)  In Moye, which involved an equal protection challenge to a civil
commitment statute, the high court articulated the strict scrutiny standard as
follows: “[T]he state must establish both that it has a ‘compelling interest’ which justifies the challenged procedure and that the
distinctions drawn by the procedure are necessary
to further that interest.”  (Moye, at p. 465.)

The McKee II court
applied that standard.  It independently
reviewed the evidence and concluded that the People had shown that the
legislative distinctions between classes of persons subject to civil commitment
were reasonable and factually based.  (>McKee II, supra, 207 Cal.App.4th at p. 1347.) 
Specifically, the People had shown that recidivism among SVP’s as a
class is more likely than among either MDO’s or NGI’s, that SVP’s pose a
greater risk to a particularly vulnerable class of victims, and that they have “significantly
different diagnoses” and significantly different treatment plans, compliance,
and success rates than MDO’s and NGI’s have. (McKee II, at p. 1347.)  The court concluded that these
distinctions justified disparate treatment, which was “necessary to further the state’s compelling interests
in public safety and humanely treating the mentally disordered.”  (Ibid.)  This satisfied the strict scrutiny standard.

Welch argues, however, that “[t]he portion
of the opinion addressing the [trial court’s] three factual findings does not
use language indicating [that] ‘the state has a compelling interest in treating
the three classes differently.’ â€
 The argument lacks merit.  The McKee
II court expressly stated that the significant differences between the
three classes “support[ed] a reasonable perception by the electorate . . . that
the disparate treatment of SVP’s under the amended Act is necessary >to further the state’s compelling interests
in public safety and humanely treating the mentally disordered.”  (McKee
II, supra, 207 Cal.App.4th at p.
1347, italics added.)

Welch also argues that strict scrutiny
“requires an analysis of whether the different treatment of the classes is
actually necessary.”  We disagree.

The People
were not required to show that SVP’s are actually
more dangerous as a class.  In remanding
the case, the McKee I court stated
that “the government will have an opportunity to justify Proposition 83’s
indefinite commitment provisions . . . , and demonstrate that they are based on a reasonable perception of the unique dangers
that SVP’s pose rather than a special stigma that SVP’s may bear in the eyes of
California’s electorate.  [¶]  Moreover, we emphasize that mere disagreement
among experts will not suffice to overturn the Proposition 83 amendments.  The trial court must determine whether the
legislative distinctions in classes of persons subject to civil commitment are
reasonable and factually based—not whether they are incontrovertible or
uncontroversial.”  (McKee I, supra, 47
Cal.4th at pp. 1210-1211, fn. omitted, italics added.)  The McKee II court relied on evidence
that scores on the Static-99 test, which assesses the risk that a sex offender
will commit sex offenses, were significantly higher for SVP’s than for MDO’s
and NGI’s.  (McKee II, supra, 207 Cal.App.4th at
pp. 1340-1342.)  It complied with the
high court’s directions.

Welch next complains that the evidentiary
hearing in McKee II improperly
focused on evidence that was “irrelevant to a correct strict scrutiny
analysis”—i.e., on evidence that lawmakers might have considered before enacting
Proposition 83 and the amended SVPA.  “The
only evidence any court should have been reviewing,” Welch asserts, “was that
showing the actual intent of the voters who passed Proposition 83 and the [L]egislature
that passed S.B. 1128.”  We disagree.

Welch’s reliance on Mississippi University for Women v. Hogan (1982) 458 U.S. 718 (>MUW) and United States v. Virginia (1996) 518 U.S. 515 (Virginia) is misplaced. 
Those cases stand for the proposition that parties seeking to defend >gender-based government action must
demonstrate an “exceedingly persuasive justification” for that action.  (MUW,
at pp. 728-730 [holding that university’s female-only admissions policy, as
applied to males seeking admission to the university’s school of nursing,
violated equal protection where, “although
the State recited a ‘benign, compensatory purpose,’ it failed to establish that
the alleged objective [wa]s the actual
purpose underlying the discriminatory classification,” italics added]; Virginia, at pp. 534-536
[noting that “[i]n cases of this genre, our precedent instructs that ‘benign’
justifications proffered in defense of categorical exclusions will not be
accepted automatically; a tenable justification must describe >actual state purposes, not
rationalizations for actions in fact differently grounded,” and holding that
the state had shown “no ‘exceedingly persuasive justification’ for excluding
all women from the citizen-soldier training afforded by VMI.”  (Italics added)].)  MUW and
Virginia are inapposite because the
government action challenged in McKee II
(and here) is not based on gender or any other suspect classification.href="#_ftn3" name="_ftnref3" title="">[3]

 Welch
next contends that the McKee II court
“should have required that the SVPA amendments be narrowly tailored to serve
their purported purpose.”  Asserting that
“authority for that proposition is abundant,” he criticizes the >McKee II court for stating “that McKee
failed to cite any authority requiring that such a law be narrowly tailored.”  

McKee cited Bernal v. Fainter (1984) 467 U.S. 216 to support his argument.  (McKee II, supra, 207 Cal.App.4th at p. 1349.)  In Bernal,
the United States Supreme Court stated that “[i]n order to withstand strict
scrutiny, the law must advance a compelling state interest by the least
restrictive means available.”  (>Bernal, at p. 219.)  The McKee
II court described the quoted sentence from Bernal as
“probable dictum,” distinguishing Bernal because
it involved a suspect class, alienage.  (McKee
II, at p. 1349.)  “We are unaware of any case applying the
‘least restrictive means available’ requirement to all cases involving
disparate treatment of similarly situated classes,” the McKee II court wrote.  (>Ibid.) 
“On the contrary, our review of equal
protection case law shows the
two-part test, as discussed in Moye and McKee [I], is the
prevailing standard. . . .  Therefore, in strict
scrutiny cases, the government must show both a compelling state interest
justifying the disparate treatment and that the disparate treatment is
necessary to further that compelling state interest.  [Citations.]  We are unpersuaded the electorate that passed
Proposition 83 in 2006 was required to adopt the least restrictive means
available (e.g., a two-year or other determinate term of civil commitment) in
disparately treating SVP’s and furthering the compelling state interests of
public safety and humane treatment of the mentally disordered.”  (McKee II, at p. 1349.) 


We agree with the McKee II court’s analysis of this issue.  We note that Moye, like McKee II and
like this case, involved an equal protection challenge to a civil commitment
statute.  The high court in McKee I
specifically instructed the trial court, on remand, to “determine whether the
People, applying the equal protection principles articulated in Moye and
related cases discussed in the [McKee I court’s] opinion,” could
demonstrate that imposing a greater burden on SVP’s than on MDO’s or NGI’s to
obtain release from confinement was necessary to promote the state’s compelling
interest in public safety and humane treatment of the mentally ill.  (McKee I, supra, 47 Cal.4th at
p. 1208, italics added.)  >

The cases Welch cites are inapposite.  In Skinner
v. Oklahoma (1942) 316 U.S. 535 (Skinner),
the United States Supreme Court reversed a judgment directing that the
defendant be sterilized under Oklahoma’s Habitual Criminal Sterilization Act,
holding that the statute violated equal protection.  “[S]trict scrutiny of the classification
which a State makes in a sterilization law is essential,” the court
declared.  (Skinner, at p. 541.)  “When
the law lays an unequal hand on those who have committed intrinsically the same
quality of offense [e.g. grand larceny and embezzlement] and sterilizes one and
not the other, it has made as invidious a discrimination as if it had selected
a particular race or nationality for oppressive treatment.”  (Ibid.)  In United
States v. Brandon (6th Cir. 1998) 158 F.3d 947, 956 (Brandon), a nondangerous pretrial detainee challenged a district
court order denying him a judicial hearing on whether he could be forcibly
medicated with antipsychotic drugs to render him competent to stand trial.  (Brandon,
at p. 949.)  Noting that the issue
involved the inmate’s First Amendment interest in avoiding forced medication
that could interfere with his ability to communicate ideas, his Fifth Amendment
liberty interest in being free from bodily intrusion, and his Sixth Amendment
right to a fair trial, the court concluded that due process considerations
required a judicial hearing and that the district court should apply the strict
scrutiny standard on remand.  (>Brandon, at pp. 953-955, 957.)  In Sanchez
v. City of Modesto (2006) 145 Cal.App.4th 660, 678 (Sanchez), the court rejected a facial challenge to the California
Voting Rights Act, holding that because the statute is nondiscriminatory, it is
subject to rational basis review, not strict scrutiny.  (Sanchez,
at p. 680.)  None of these decisions involved an equal protection challenge to a
civil commitment statute.  Moye did,
and the California Supreme Court specifically instructed that it be followed on
remand in McKee.  (McKee
I, supra, 47 Cal.4th at p. 1208.) 
The McKee II court did not err in following the high court’s
directive to apply the equal protection principles articulated in Moye.

Welch next contends that the >McKee II court’s failure to distinguish >In re Calhoun (2004) 121 Cal.App.4th
1315 (Calhoun) “demonstrates [that]
its equal protection analysis is flawed and should be rejected.”  We disagree.

In Calhoun,
the court held that “[e]qual protection principles require that an SVP be
provided with the same right as an MDO to refuse antipsychotic
medication.”  (Calhoun, supra, 121
Cal.App.4th at p. 1351.)  The two groups were
similarly situated “for purposes of the law concerning the right to refuse
antipsychotic medication,” the court explained, and the People had failed to
demonstrate a compelling state interest that justified a distinction between
them in that regard.  (>Id. at pp. 1352-1354.)

Calhoun is easily distinguished.  The
equal protection issue in Calhoun turned on the absence of differences between SVP’s and MDO’s
with respect to the need for, and the effectiveness of, antipsychotic medication.  (McKee II, supra, 207 Cal.App.4th at p. 1352.)  The equal protection issue
in McKee II, by
contrast, turned on the differences between the two groups with respect to recidivism
rates, dangerousness, and diagnoses and treatment.  (Id.
at pp. 1340-1347.)  That the >Calhoun court found no justification for
treating SVP’s and MDO’s differently with respect to forced medication does not
mean there can be no justification for treating them differently with respect
to their release into society.  The
inquiries are entirely different.

 

III. 
Disposition

The November 9, 2012 order committing Welch
to the custody of the DSH for an indeterminate term is affirmed.

 

 

 

 

                                                                        ___________________________

                                                                        Mihara,
J.

 

 

 

WE CONCUR:

 

 

 

 

 

_____________________________

Premo, Acting P. J.

 

 

 

 

 

_____________________________

Grover, J.