Filed 8/3/26 P. v. Loza CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B338229

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA507083-02)
v.

DRAKE NATHANIEL LOZA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Ray G. Jurado, Judge. Affirmed.

Michael Reed, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Analee J. Brodie,
Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
 A jury convicted appellant Drake Nathaniel Loza and co-
defendant Andres Garcia of willful, deliberate and premeditated
attempted murder in violation of Penal Code1 sections 187,
subdivision (a), and 644. The jury found true that Loza
personally inflicted great bodily injury and personally used a
deadly weapon in violation of sections 12022.7, subdivision (a)
and 12022, subdivision (b)(1). The jury also convicted Loza of a
second count —possessing a weapon while in custody in violation
of section 4502, subdivision (a). Loza admitted he suffered one
prior strike conviction for manslaughter.
The trial court sentenced Loza to 17 years to life in prison,
comprising seven years to life, doubled pursuant to the Three
Strikes law, for the attempted murder conviction, plus a
consecutive three-year term for the great bodily injury
enhancement. The court imposed a concurrent one-year term for
the personal use of a weapon enhancement. For count 2,
possession of a weapon in custody, the court imposed a
concurrent middle term of three years. Loza timely appealed.
On appeal, Loza contends four grounds compel reversal of
the judgment: 1) as to the charge of attempted murder, the trial
court erred in not instructing the jury on the lesser included
offense of assault with a deadly weapon; 2) as to the same charge,
the trial court erred in not instructing the jury on the lesser
related offense of assault with a deadly weapon; 3) the court
erred in imposing concurrent punishment for the possession
count instead of staying the sentence under section 654; 3) the
trial court erred in declining, for public safety concerns, to
dismiss Loza’s enhancements. We affirm the judgment.

1 Statutory references are to the Penal Code.

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 FACTUAL BACKGROUND
Loza was convicted of stabbing a fellow inmate 30−40 times
while they were incarcerated at the Men’s Central Jail in Los
Angeles County. The evidence at trial established that around
4:30 p.m. on August 22, 2021, two inmates in the shower area of
the jail appeared to be punching a third inmate, whose arms were
raised defensively trying to block the blows. The victim of the
attack was later identified as Francisco Fuerte. Fuerte was
shirtless and had no weapon. Of all the inmates in the shower
area, only two inmates, Loza and his co-defendant Garcia, wore
shirts; everyone else was barechested. It turned out, the two
aggressors were not punching the victim but using “a thrusting
motion, more like a fencer.” There appeared to be a large amount
of blood pooling on the floor.
Deputy sheriffs arrived at the showers and saw Loza and
codefendant Garcia with “metal objects” in their hands stabbing
Fuerte. Five deputies converged on the scene and separated the
attackers from Fuerte. It appeared Fuerte had been stabbed
multiple times all over his body, neck, back, arms, and chest. He
was transported to a trauma center for treatment. According to
the trauma surgeon, Fuerte had been stabbed 30–40 times, an
unusually large number, lacerating his lungs, kidney, diaphragm,
and neck. He survived because of his youth and because he
received lifesaving emergency treatment so quickly.
After the attack, codefendant Garcia climbed up a railing
and threw two objects onto a landing. Two objects were later
retrieved from the landing. They were two prison-made weapons
or “shanks.” One weapon appeared to be a sharpened
screwdriver with a cloth handle and a loop to secure the weapon
onto the wrist. The other was knife-shaped and appeared to have

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been made out of a piece of inmate bed bunks. It, too, had a loop
on the handle.
The shower waiting area was one of several jail areas
where inmates mingle and socialize; the other areas were the
dayroom and exercise yard. There are visible surveillance
cameras in the dayrooms and inmates are searched before going
out into the yard. There are no surveillance cameras in the
showers, only in the shower waiting area nearby.
DISCUSSION
I. Assault with a Deadly Weapon is Not a Lesser
Included Offense of Attempted Murder.
Loza faults the trial court for not instructing the jury that
assault with a deadly weapon is a lesser-included offense of
attempted murder. Had the trial court done so, the jury would
have had the option of considering a lesser charge in lieu of
attempted murder.
Generally, the trial court is obligated to instruct sua sponte
on any lesser offenses “necessarily included” in the charged
offense, if there is substantial evidence that only the lesser crime
was committed. (People v. Birks (1998) 19 Cal.4th 108, 112, 118.)
“This venerable instructional rule ensures that the jury may
consider all supportable crimes necessarily included within the
charge itself, thus encouraging the most accurate verdict
permitted by the pleadings and the evidence.” (Ibid.) Under
California law, a lesser offense is necessarily included in a
greater offense if either the statutory elements of the greater
offense, or the facts actually alleged in the accusatory pleading,
include all the elements of the lesser offense, such that the
greater cannot be committed without also committing the lesser.

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(Id. at p. 117; People v. Hamilton (2018) 30 Cal.App.5th 673, 685–
686.)
Under the “statutory elements” test, assault with a deadly
weapon is not a lesser included offense of attempted murder,
because an attempted murder can be committed without using a
deadly weapon. (People v. Alarcon (2012) 210 Cal.App.4th 432,
436–439 [assault with a firearm not a lesser offense of attempted
murder with firearm enhancement]; People v. Nelson (2011)
51 Cal.4th 198, 215 [assault with a firearm or a deadly weapon is
not a lesser included offense of attempted murder].)
Under the accusatory pleading test, a court looks to
whether the charging allegations include language describing the
charged offense in such a way that, if committed as alleged, the
greater necessarily subsumes a lesser offense. (People v Alarcon,
supra, 210 Cal.App.4th at p. 436.)
Here the accusatory pleading test is inapplicable given the
language of the amended information, which reads: “On or about
August 22, 2021, in the County of Los Angeles, the crime of
WILLFUL, DELIBERATE, AND PREMEDIATED ATTEMPTED
MURDER, in violation of PENAL CODE SECTIONS 664 and
187(a), a Felony was committed by ANDRES CORTEZ GARCIA
and DRAKE NATHANIEL LOZA, who did unlawfully and with
malice aforethought attempted to murder FRANCISCO
FUERTE, a human being.” The charge itself is not described in
such a way that it necessarily subsumes the lesser offense of
assault with a deadly weapon, as it does not accuse the
defendants of using a deadly weapon in committing the offense.
Loza argues we must consider the separate deadly weapon
enhancement also alleged in the amended information in
determining whether the lesser offense of assault with a deadly

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weapon is subsumed in the description of the charged crime of
attempted murder. Here, if the charged enhancement (using a
deadly weapon, a knife) were considered, the charge would
subsume the lesser offense of assault with a deadly weapon.
Current California law does not permit enhancements to be
considered. (People v. Wolcott (1983) 34 Cal.3d 92, 101–102
(Wolcott) [enhancements are not considered part of the
accusatory pleading and are not taken into account when
identifying necessarily included offenses for which sua sponte
instructions must be given].) Loza argues that the 1983 holding
in Wolcott has been abrogated by Apprendi v. New Jersey (2000)
530 U.S. 466 (Apprendi). We disagree. Apprendi decreed that
any fact other than the fact of a prior conviction that increases
the penalty beyond the statutory maximum for the charged
offense must be found by a jury true beyond a reasonable doubt.
(Id. at p. 490.) As set out below, Apprendi did not address
whether sentencing enhancements must be incorporated into the
underlying offense for purposes of determining whether the
charging document alleges a necessarily included offense.
Our Supreme Court has rejected the notion that Apprendi
requires courts to treat sentencing penalty allegations as if they
were actual elements of offenses for all purposes under state law.
(People v. Izaguirre (2007) 42 Cal.4th 126, 133–134 [Apprendi did
not compel conduct enhancements to be considered part of the
elements of the underlying offenses]; Porter v. Superior Court
(2009) 47 Cal.4th 125, 137–138 (Porter) [Apprendi does not
compel California courts to consider enhancements as elements of
the underlying offense for purposes of double jeopardy
protection].)

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 Porter and Izaguirre expressly note that Apprendi did not
change California’s rule that enhancements are not considered
legal elements of the offense to which they are attached. Indeed,
Porter expressly comments that Apprendi is confined to
situations where enhancements increase the punishment beyond
the statutory maximum of the offense charged. Because the
enhancement increases punishment, it is the “ ‘functional
equivalent’ ” of an element of a greater offense than the one
covered by the jury’s guilty verdict. (Porter, supra, 47 Cal.4th at
p. 134.) Apprendi has no application in determining how to
define necessarily included offenses generally. We conclude we
are bound by Wolcott as it is still viable precedent.
II. The Trial Court Did Not Err in Refusing to Instruct
That Assault with a Deadly Weapon Is a Lesser
Related Offense of Attempted Murder.
Twice Loza asked the court to instruct the jury on assault
with a deadly weapon as a lesser related offense to attempted
murder. Both requests were denied. Loza argued there was “a
sufficient basis” in the evidence for the instruction, in that he
could have attacked and “gravely injured” the victim without the
intent to kill him.
The trial court declined to instruct on assault with a deadly
weapon, stating that the evidence showed Loza and co-defendant
Garcia ambushed Fuerte, hiding their weapons under their shirts
until Loza lunged at Fuerte and began stabbing. As a result,
Fuente sustained over 30 stab wounds in rapid succession, many
of which deeply penetrated his body. The court found this
evidence did not support the notion that Loza acted without the
intent to kill Fuentes. We agree.

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 If a lesser offense shares some common elements with the
greater offense, or if it arises out of the same criminal course of
conduct as the greater offense, but it has one or more elements
that are not elements of the greater offense as alleged, then it is a
lesser related offense, not a necessarily included offense. (People
v. Hicks (2017) 4 Cal.5th 203, 209; People v. Lagunas (1994)
8 Cal.4th 1030, 1034−1035.)
The resolution of a request for instructions on lesser related
offenses “involves nuanced ‘ “questions of degree and
judgment.” ’ ” (People v. Birks, supra, 19 Cal.4th at p. 131.) A
trial court has no sua sponte duty to instruct on lesser related
offenses. (People v. Lam (2010) 184 Cal.App.4th 580, 583.) Nor
does the law obligate a trial court to grant a defendant’s request
for a lesser related offense instruction even if substantial
evidence supports the instruction (ibid.) or both the defendant
and prosecutor agree to it. (People v. Hall (2011) 200 Cal.App.4th
778, 806.) However, where a prosecutor objects to an instruction
of a lesser related offense, the trial court errs in giving such an
instruction. (Lam, at p. 583.) Under appropriate circumstances
a court may choose to grant a defendant’s request for a lesser
related instruction if substantial evidence supports the
instruction and the prosecutor consents. (Ibid.) Nonetheless, a
defendant is not entitled to instructions on related offenses in
any case in which there is no basis on which the jury could find
the offense was less than that charged. (People v. Wickersham
(1982) 32 Cal.3d 307, 323–324, disapproved on other grounds in
People v. Barton (1995) 12 Cal.4th 186, 200–201.) “[T]he first
prerequisite to receiving instructions on lesser related offenses
must be the existence of some basis, other than an unexplainable
rejection of prosecution evidence, on which the jury could find the

8
offense to be less than that charged.” (People v. Geiger (1984)
35 Cal.3d 510, 531, reversed on other grounds by People v. Birks,
supra, 19 Cal.4th 108, 112–113, 136.)
The independent or de novo standard of review is
applicable in assessing whether instructions correctly state the
law. (People v. Posey (2004) 32 Cal.4th 193, 218.) On the other
hand, given the authorities we have cited above, it appears case
law affords the trial court much latitude, that is, discretion, in
deciding whether to give a lesser related instruction. We
conclude that under any standard of review, the trial court did
not err in declining to instruct on assault with a deadly weapon
as a lesser related offense to attempted premeditated murder.
Preliminarily, we note the People neither consented nor
objected to Loza’s request for a lesser related instruction. We
decline to interpret the People’s agnostic response to Loza’s
proposed instruction as consent.
We conclude the trial court correctly found that the
evidence at trial strongly supported the charge of attempted
murder and did not support the charge of assault with a deadly
weapon. It is well settled that intent to kill or express malice, the
mental state required to convict a defendant of attempted murder
(and not required for assault with a deadly weapon), may be
inferred from the defendant’s acts and the circumstances of the
crime. (People v. Smith (2005) 37 Cal.4th 733, 741; People v.
Avila (2009) 46 Cal.4th 680, 701.) The evidence was substantial
that Loza acted with premeditated intent to kill Fuerte, stabbing
Fuerte multiple times with weapons at the ready as Fuerte tried
to shield himself from the attack. Moreover, Loza presented no
evidence from which it could have been inferred that the killing
was provoked or was anything other than premeditated and

9
intentional. (People v. Bolden (2002) 29 Cal.4th 515, 561 [in
plunging the knife so deeply into a vital area of the body of an
apparently unsuspecting and defenseless victim, defendant could
have had no other intent than to kill]; People v. Avila, at p. 701–
702 [where defendant repeatedly attempted to stab an unarmed
and trapped victim and succeeded in stabbing him in the arm and
leg, that evidence alone is substantial evidence of defendant’s
intent to kill]; People v. Gonzalez (2005) 126 Cal.App.4th 1539,
1552 [intent to kill demonstrated in part by evidence of
unprovoked attack that rendered unarmed victim prone and
defenseless as defendant repeatedly stabbed him].)
We conclude the evidence of premeditation and intent to
kill was so substantial that there was no basis, other than an
“unexplainable rejection of the prosecution’s evidence,” for a jury
to have rejected it. The record includes no other evidence upon
which a jury could have explicably rejected the evidence of
premeditation and intent to kill. Because of this, a lesser related
instruction on assault with a deadly weapon was not warranted.
Nonetheless, if the evidence could be construed as
supporting the instruction, any error from foregoing the
instruction would be harmless as we conclude it is not reasonably
probable that a jury would have returned a verdict more
favorable to Loza, given the overwhelming evidence of the entire
course of conduct supporting its finding of premeditated, willful
and deliberate attempted murder. (People v. Watson (1956)
46 Cal.2d 818.) We conclude, for the same reason, that any error
was harmless beyond a reasonable doubt under Chapman v.
California (1967) 386 U.S. 18, 836–838.

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III. Trial Court Did Not Err in Imposing, Rather Than
Staying, the Three-Year Sentence on Count 2,
Possession of a Weapon While Confined in a Penal
Institution.
Loza argues the trial court should have stayed the sentence
on count 2, possession of a weapon while confined in a penal
institution, instead of imposing it concurrently with the sentence
for attempted murder. He contends that section 654 prohibits
multiple punishments for a single act or omission despite the act
being “ ‘punishable in different ways by different provisions of the
law.’ ” (People v. Mesa (2012) 54 Cal.4th 191, 193.) A defendant
may sustain multiple convictions arising out of a single act or
omission but cannot be subject to multiple punishments for those
convictions. (Id. at p. 194.) Because Loza possessed the weapon
while committing the act of attempted murder, he argues that
the three-year sentence for possession should have been stayed.
Put another way, there was no evidence that he possessed the
weapon prior to and independently of the offense charged.
The People disagree, arguing that the evidence allows the
inference that Loza and Garcia arrived at the shower already in
possession of the shanks they used to stab Fuerte and therefore
section 654 does not compel a stay of the three-year sentence.
Where the facts are undisputed—as they are here—the
application of section 654 raises a question of law we review de
novo. (People v. Corpening (2016) 2 Cal.5th 307, 312.) “In the
absence of an explicit ruling by the trial court at sentencing, we
infer that the court made the findings appropriate to the sentence
it imposed, i.e., either applying section 654 or not applying it.”
(People v. Mejia (2017) 9 Cal.App.5th 1036, 1045.)

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 Section 654, subdivision (a) provides as follows: “An act or
omission that is punishable in different ways by different
provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished
under more than one provision.” Section 654 does not allow any
multiple punishment, including either concurrent or consecutive
sentences. (In re Wright (1967) 65 Cal.2d 650, 652–655 [trial
court erred in imposing concurrent sentences for two convictions
for which section 654 prohibited multiple punishment]; People v.
Miller (1977) 18 Cal.3d 873, 887, abrogated on other grounds as
stated in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8
[concurrent sentences are precluded by section 654 because the
defendant is deemed to be subjected to the term of both sentences
although they are served simultaneously].)
The Supreme Court has adopted a two-step inquiry to
determine whether a defendant may be subject to multiple
punishments. Courts must first consider whether “the different
crimes were completed by a ‘single physical act.’ ” (People v.
Corpening, supra, 2 Cal.5th at p. 311.) If they were, the
defendant may not be punished more than once. (Ibid.) Only if
the case involves several acts, or a course of conduct, should
courts consider whether the conduct reflects a single intent or
objective. Where all the acts and offenses are “merely incidental
to, or were the means of accomplishing or facilitating one
objective, the defendant may be found to have harbored only a
single intent and therefore may be punished only once.” Thus,
whether, for example, possession of a concealable firearm by a
felon constitutes a divisible transaction from the offense in which
the weapon is employed depends upon the facts and evidence of
each individual case. (People v. Brown (1958) 49 Cal.2d 577, 591,

12
superseded by statute as stated in People v. Burns (1984)
157 Cal.App.3d 185; People v. Venegas (1970) 10 Cal.App.3d 814,
821 (Venegas).)
In Venegas, whether the unlawful possession of a weapon
then used in committing another offense were “divisible”
transactions was analyzed under a temporal framework. “Where
the evidence shows a possession distinctly antecedent and
separate from the primary offense, punishment on both crimes
has been approved. [Citations.] On the other hand, where the
evidence shows a possession only in conjunction with the primary
offense, then punishment for the illegal possession of the firearm
has been held to be improper where it is the lesser offense.”
(Venegas, supra, 10 Cal.App.3d. at p. 821 (italic added).)
People v. Bradford (1976) 17 Cal.3d 8, 13, 22−23 applies the
Venegas test: there, as in Venegas, the evidence showed the
defendant acquired unlawful possession of the weapon at the
same time as when he used it to commit other offenses. (Id. at
pp. 22–23.)
In both cases, the courts did not analyze the facts by using
the “single act” test, to wit, was a single act parsed into separate
crimes and then unlawfully used to subject the defendant to
multiple punishments. Instead, in both cases the courts
determined that the evidence showed the defendants obtained
possession of the firearm in the course of committing other
offenses. Put another way, the courts looked at when the
defendants obtained possession of the weapons and concluded
that because the defendants obtained the weapons at the same
time they committed the other offense, there was but a single
course of conduct. In Bradford, the court found the defendant’s
possession of the weapon was not “antecedent and separate” from

13
the use of the weapon in a simultaneous assault. (Bradford,
supra, 17 Cal.3d at p. 22.) The defendant had “wrested” it away
from the police officer during his assault on that officer. (Id. at
p. 13.) In Venegas, a shooting in a bar, “the evidence shows a
possession only at the time defendant shot [the victim]. Not only
was the possession physically simultaneous, but the possession
was incidental to only one objective, namely to shoot [the
victim].” (Venegas, supra, 10 Cal.App.3d at p. 821 (italics
added).)
Here, too, we use the single course of conduct test and
conclude that possession of the illegal shanks did not occur
simultaneously with the attack on Fuerte and therefore did not
merge into the attack on Fuerte so as to constitute a single course
of conduct. It is true the evidence supports the inference that
Loza’s only purpose in possessing those weapons in the shower
was to kill Fuerte. Surveillance video of the shower waiting area
shows Loza with his hand under his shirt.
Nonetheless, adding the temporal factor, we ask whether
Loza’s possession of the shank was “distinctly antecedent to” and
“separate” from the actual act of stabbing Fuerte. The answer is
yes, because the evidence allows the inference that he and Garcia
possessed the prison-made weapons while in custody before the
attack and brought them into the shower area under their shirts
for the purpose of stabbing Fuerte. There was no evidence that
Loza fortuitously came into possession of the shanks in the
shower area as he was about to commit the attack on Fuerte.
Nor does such an inference comport with the jury’s finding that
the attack was premeditated. Loza’s possession of the weapon in
custody was plainly separate from and antecedent to the
attempted murder. Because the evidence allows the inference

14
that Loza possessed the weapon while in custody before the
premeditated attack on Fuerte, notwithstanding his objective to
use it to kill Fuerte, we conclude Loza’s acts were divisible and
not a single course of conduct. Therefore, section 654 does not
compel a stay of the sentence on count 2.
IV. The Trial Court Did Not Abuse Its Discretion in
Declining to Dismiss the Sentence Enhancement for
Infliction of Great Injury under Section 12022,
Subdivision (b)(1).
The jury found true that Loza used a weapon to inflict
great bodily injury upon the victim within the meaning of section
12022, subdivision (b)(1). The trial court enhanced Loza’s
sentence by adding a consecutive three-year term, declining
Loza’s request to strike the enhancement. In support of his
request that the court strike the enhancement, Loza submitted
evidence of several and severe mental, physical, and emotional
traumas and impairments, including neurocognitive
impairments, parental domestic violence and drug use in his
childhood home, and kidnapping and sexual abuse when he lived
in an out-of-home placement.
The People opposed striking the enhancement based on
Loza’s prior conviction of voluntary manslaughter and the
circumstances of that crime which included shooting a rival gang
member as he ran away from a confrontation with Loza.
The trial court considered the mitigating circumstances
and acknowledged that Loza described “difficult circumstances
that he faced as a young boy and a young man.” It gave these
“great weight.” Nonetheless, it found that Loza presented a
danger to “public safety given the extent of violence perpetrated
in this case by Mr. Loza, as well as by his codefendant, Mr.

15
Garcia, consisting of approximately 30 stabs to the victim, which
caused the victim substantial injuries . . . . [¶] . . . I am not
exercising my discretion under Penal Code section 1385 to
dismiss any enhancements because, unfortunately, doing so
would endanger public safety. And this is also considering Mr.
Loza’s past criminal history, including his most recent conviction
surrounding a 2017 incident where he was convicted of voluntary
manslaughter and sentenced to . . . [¶] . . . [¶] 26 years [to life] in
state prison back in 2021. [¶] And I’ll note, . . . that Mr. Loza was
awaiting transport to state prison as a result of that prior
conviction, at the time he committed this offense.”
Effective January 1, 2022, Senate Bill No. 81 (2021–2022
Reg. Sess.) conferred upon the trial court the discretion to dismiss
an enhancement “unless the court finds that dismissal of the
enhancement would endanger public safety.” (§ 1385,
subd. (c)(2).) The term “endanger public safety” means “a
likelihood that the dismissal of the enhancement would result in
physical injury or other serious danger to others.” (Ibid.) We
review a court’s decision not to strike an enhancement under
section 1385 for abuse of discretion, a highly deferential
standard. (People v. Carmony (2004) 33 Cal.4th 367, 373−374,
376−377.) A court abuses its discretion when it acts in an
arbitrary, capricious or patently absurd manner that results in a
manifest miscarriage of justice. (Ibid.) A court is not required to
state reasons for declining to exercise its discretion under section
1385 and is presumed to have considered all of the relevant
factors in the absence of an affirmative record to the contrary.
(People v. Brugman (2021) 62 Cal.App.5th 608, 637.)

16
 Here the court acknowledged Loza’s mitigating
circumstances and gave them great weight but concluded that
the circumstances of the offense, along with the fact that Loza
had just been convicted of killing another person and was
awaiting transport to state prison for that offense when he
attempted to kill Fuerte, indicated that he posed a danger to
public safety. That the court did not expressly find that Loza
would continue to pose a threat to public safety at the time of his
parole eligibility does not constitute an abuse of discretion under
these facts. The trial court noted Loza would probably not be
released until he was in his sixties, given the two sentences he
would have to complete. From that we infer that the trial court
declined to shorten Loza’s sentence because it determined a long
sentence was necessary to protect the public from him. Given
Loza’s back-to-back voluntary manslaughter and attempted
murder convictions and the circumstances of the current offense
(premeditating and then, with a codefendant, viciously stabbing a
defenseless victim 30 to 40 times), it is reasonable to conclude
there was no abuse of discretion in finding Loza a long term
danger to public safety, or in finding that a shorter sentence was
inappropriate even giving the mitigating circumstances great
weight.

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 DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

VIRAMONTES, J.

SCHERB, J.

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