Filed 9/29/15 P. v. Reynolds CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048622

         v.                                                            (Super. Ct. No. INF039323)

JERRY EUGENE REYNOLDS,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Riverside County, James
S. Hawkins, Judge. Affirmed as modified.
                   Ron Boyer, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff
and Respondent.
                                          *                  *                  *
              Defendant Jerry Eugene Reynolds, Jesse Dean Nava, Michael Marohn, and
Mario Gonzalez were charged with Bernardo Gouthier’s murder. Gonzalez was tried
separately and convicted of first degree murder. Marohn cooperated with law
enforcement and received a determinate sentence of 20 years four months.
              This is defendant Jerry Eugene Reynolds’s second appeal in this matter. In
the first appeal, we reversed his and Nava’s convictions for first degree murder due to
Batson/Wheeler error.1 (People v. Reynolds (July 16, 2009, G040063) [nonpub. opn.].)
On remand, defendant and Nava were acquitted of first degree murder and convicted of
second degree murder as a lesser included offense.2 While conceding the evidence would
have been sufficient to support a conviction for first degree murder had he been so
convicted, defendant contends the evidence does not support his conviction for second
degree murder.
              He also urges his conviction should be reversed based on prosecutorial
misconduct during argument, and that he is entitled to additional days credit against his
sentence. The Attorney General concedes the court erred in failing to award presentence
conduct credits. We agree and will order the abstract of judgment amended to reflect the
correct presentence credits. We otherwise affirm the judgment.
                                               I
                          PROCEDURAL SETTING AND FACTS
              Defendant and Nava were charged in the second amended information with
the murder of Gouthier on October 25, 1977, in Riverside County. (Pen. Code, § 187,
subd. (a); all undesignated statutory references are to the Penal Code.) The murder was
alleged to have been committed for financial gain (§ 190.2, subd. (a)(1)), Nava was


              1   Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22
Cal.3d 258.

              2   Nava is not a party to this appeal.

                                               2
alleged to have personally used a firearm in the commission of the murder (§ 12022.5,
former subd. (a)(1)), and defendant was charged with two vicariously armed allegations
(§ 12022, subd. (d)).
              Defendant and Nava represented themselves at trial. The jury found both
not guilty of first degree murder and guilty of second degree murder as a lesser included
offense of first degree murder. The jury also found true the allegation defendant had
been vicariously armed with a .357-caliber handgun and found the second section 12022,
subdivision (d) enhancement not true in connection with a .25-caliber handgun. The
court sentenced defendant to 15 years to life on the second degree murder and a
consecutive three-year upper term for armed enhancement. The court directed the
probation department to calculate defendant’s custody credits. The probation department
calculated defendant’s actual time in custody and claimed defendant was not entitled to
any conduct credits pursuant to section 2933.2, subdivision (a). The court entered an
order reflecting an award of credits as calculated. Defendant filed a timely notice of
appeal.
              Pattison Hayton considered himself an investment banker. He had offices
in Rhode Island, La Quinta, and Vancouver, Canada. He married Kathy Barr in 1988.
They lived in PGA West in La Quinta. He traveled a lot for business and to play polo.
Barr said she only saw Hayton five to 10 days a month.
              In 1995, three months after her son was born, Barr began an affair with
Bernardo Gouthier. Gouthier was an art dealer. He lived near Hayton and Barr on a 20-
acre sculpture park with a main house and two pools in PGA West.
              Hayton found out about Barr and Gouthier’s relationship. In December
1996, Hayton telephoned Gouthier, put Barr on the telephone with Gouthier, and told her
to tell Gouthier to leave her alone. She did and then Hayton got on the phone with
Gouthier. Hayton told Gouthier to leave Barr alone “or you’ll be dead.”



                                             3
              Barr and Hayton separated in January 1997. Barr moved in with Gouthier
part time around March 1997, and permanently in September 1997. Dissolution
proceedings were “ugly.” Hayton did not pay the court-ordered child support. Neither
did he pay the court-ordered spousal support. After appearing at a hearing in the
dissolution matter, Barr went to the family residence at PGA West to remove the
remainder of her belongs. She showed up with Gouthier’s truck and his best friend.
Hayton got angry, asking the male whether he worked for “that effing [Gouthier].”
Hayton also became violent. As Barr was leaving the house carrying their baby, a diaper
bag, and a painting of Gouthier’s, Hayton grabbed the painting from her, put his foot
through it, and threw it at Barr, telling her to give it back to her “effing boyfriend.” He
pushed Barr and “slamm[ed]” her into metal doors. Barr called the police and Hayton
was arrested. As Hayton was being taken away by police, his personal assistant asked,
“What happens now . . . ?” Hayton told her to contact defendant. She did and defendant
helped Hayton post bail.
              On another occasion Barr went to a mediation hearing and parked her car in
front of the building where the meeting was to be held. When she returned, her car was
gone. The police found it in the desert. It had been “torched.”
              Also during the dissolution proceedings, the office of Barr’s divorce
attorney was the subject of arson. Barr’s attorney told arson investigators he suspected
Hayton or someone on his behalf was behind it, given Barr’s vehicle had been burned and
Gouthier’s “brand-new” pickup truck had been “torched and burned in his driveway.”
Michael Marohn and his father burned the attorney’s office at defendant’s direction.
              On October 23, 1997, Hayton learned Barr and his children were living
with Gouthier. The court handling the dissolution matter ordered Barr to provide Hayton,
in writing, the address where she and the children were living. Hayton became
“absolutely furious” when he was given the information. According to Hayton, they
were living “in [his] f…ing backyard.” Gouthier’s residence was at the back gate of the

                                              4
community where Hayton lived. That day, Hayton stayed in his office with the door shut
the rest of the day after getting the news. He did not let anyone in his office and he
refused to take any calls. Hayton’s assistant said she does not know if Hayton used
Gouthier’s name that day, but he “used a lot of ‘f…ing whore.’” That same day, a check
for $1,000 was made out to defendant from one of Hayton’s companies.
              On October 25, 1997, the last day of Gouthier’s life, Barr spent the day
with him. That evening she went to Palm Desert to have dinner with a couple of
girlfriends. The children were with their father, Hayton.
              Barr attempted to call Gouthier when she left the restaurant, but he did not
answer. She kept calling from the car, but there was no answer. When she got home, she
noticed all the lights were on inside the house and the front door was wide open. Both
were unusual. Barr entered and could smell Gouthier’s cologne. She called out for him
but he did not answer. After Barr looked through the whole house and could not find
Gouthier, she called his best friend Willard and asked if he had heard from Gouthier.
Willard told Barr to get out of the house.
              Barr drove across the street to the caretakers’ house. The caretakers found
Gouthier. He had been shot four times and was dead. Once Barr learned what happened
to Gouthier and the police finally arrived and spoke with her, she said, “I know who did
this. My husband’s behind this. I don’t think he did it, but he had someone do it, and he
has an alibi, and he has my kids.”
              Police went to Hayton’s residence in PGA West the next morning and saw
him talking to someone next to a Maple Leaf Plumbing truck assigned to defendant by
Maple Leaf. The security log for PGA West stated the truck entered PGA West at 8:50
a.m. with the stated purpose of going to Hayton’s address. Maple Leaf records indicate
defendant was not on company business at the time.
              That same morning, October 26, 1997, defendant telephoned his personal
assistant. He told her the police said Gouthier had been killed and the police suspect it

                                             5
was “a hit.” The assistant knew who Hayton was talking about. She said everyone in the
officer knew Gouthier was Barr’s boyfriend. Hayton told his assistant he needed her to
come to his house right away. She arrived at his residence around 12:00 p.m. or 1:00
p.m. He was upset she had taken so long.
              When she arrived, the assistant saw the children, the nanny, and enough
packed luggage to last a year. Hayton called her into his home office and said there were
things he needed her to do. She said Hayton was rambling, not making sense, and at one
point started crying. Hayton left town without telling his assistant where he was going.
Although the assistant did not know where he went, she kept in contact with him. This
was unusual for Hayton. He had never before taken off for weeks at a time. His assistant
asked him why. He said it was because he was afraid and was protecting his children.
              Some time after the shooting, the assistant met with Hayton in his Rhode
Island office. One day in early November 1997, defendant angrily stormed into the
Rhode Island office between 10:00 a.m. and noon. The assistant called Hayton, who was
in a meeting with executives. Hayton told the executives to wait and he left the meeting
to meet with defendant for about 30 to 40 minutes. Leaving executives waiting like that
was unusual for Hayton. Defendant calmed down after meeting with Hayton. After that
meeting, Hayton then told his assistant to book a return flight to California for defendant.
              Later that month, a law firm that handled certain matters for Hayton
disbursed $10,000 to defendant at Hayton’s direction. Defendant was also given 100,000
shares of stock in one of Hayton’s companies. The next day, defendant opened an
account with Merrill Lynch. Defendant deposited the 100,000 shares of stock, worth
$35,000, into the account. On November 10, 1997, $5,000 was wired into defendant’s
account from one of Hayton’s companies.
              Marohn was 17 years old in 1997. He was a gang member and a drug user.
Marohn testified for the prosecution in exchange for a sentence of 20 years four months
for manslaughter, a number of burglaries, and arson.

                                             6
              Marohn said defendant paid him and Nava to kill someone in La Quinta at
“[t]he Sculpture Park,” in October 1997. Defendant offered Marohn $5,000 to do the
killing. Defendant told Marohn the subject to be killed lived at the sculpture park with a
woman, and told Marohn when the woman would be away from the sculpture park,
leaving the subject alone at the house. Marohn may have learned the day before the
killing that Gouthier would be alone at the house that night. Defendant gave Marohn a
.357-caliber firearm and told him to use it. He also gave Marohn a Taser and zip ties,
leading Marohn to believe defendant wanted him to “incapacitate . . . Gouthier, shock
him, zip tie him, and shoot him.” Defendant told Marohn there would be cocaine in
Gouthier’s house. Gonzalez went along with Marohn and Nava to find the cocaine.
Marohn did not tell Gonzalez that Gouthier would be killed.
              Prior to the killing, Marohn borrowed a smaller caliber pistol from
Gonzalez. The plan was for Marohn to Taser Gouthier, tie him up, and then Nava would
shoot Gouthier. Nava had a .25-caliber firearm. They parked across the street from
Gouthier’s residence, climbed the fence surrounding the property, and walked through
the property to the residence. Marohn tried the doorknob and found the door was not
locked. They found Gouthier inside a bedroom. Marohn told Gouthier to get on the
ground. Gouthier complied. Marohn tasered Gouthier, who then jumped up, and Marohn
yelled, “Shoot, shoot.” Nava fired four or more shots and Gouthier crashed through “a
window.” Gonzalez, Nava, and Marohn ran away after Gouthier went through the
bedroom window.
                                            II
                                      DISCUSSION
A. The Evidence Supports the Murder Verdict
              As a general rule, “‘[w]hen considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial evidence—that is, evidence

                                             7
that is reasonable, credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine
‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ [Citation.] In so doing, a reviewing court ‘presumes in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.’ [Citation.]” (People v. Edwards (2013) 57 Cal.4th 658, 715.)
              Murder is the unlawful killing of a human being with malice aforethought.
(§ 187, subd. (a).) “[M]alice may be express or implied. It is express when there is
manifested a deliberate intention unlawfully to take away the life of a fellow creature. It
is implied, when no considerable provocation appears, or when the circumstances
attending the killing show an abandoned and malignant heart.” (§ 188.) The crime of
murder is divided into degrees. Murder is of the first degree if the unlawful killing was
deliberate and premeditated, or it the killing occurred during the commission of one or
more of the offenses listed in section 189. All other murder is of the second degree.
(§ 189.) In other words, “[s]econd degree murder is the unlawful killing of a human
being with malice aforethought but without the additional elements, such as willfulness,
premeditation, and deliberation, that would support a conviction of first degree murder.”
(People v. Knoller (2007) 41 Cal.4th 139, 151.) Second degree murder is a lesser
included offense of a deliberate and premeditated murder. (See People v. Elliot (2005)
37 Cal.4th 453, 475 [failure to instruct on lesser included offense of second degree
murder was harmless based on facts of case].)
              The evidence supports defendant’s conviction. Because defendant was not
present when Gouthier was murdered, his liability must be based on an aiding and
abetting theory. One who aids and abets a principal’s commission of a crime shares the
guilt of the actual perpetrator. (§ 31.) “[A]n aider and abettor is a person who, ‘acting
with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or

                                             8
purpose of committing, encouraging, or facilitating the commission of the offense, (3) by
act or advice aids, promotes, encourages or instigates, the commission of the crime.’
[Citation.]” (People v. Prettyman (1996) 14 Cal.4th 248, 259.) In arranging for Gouthier
to be killed by Marohn and Nava, defendant necessarily knew of their intent to kill
Gouthier. He encouraged them to commit the murder and, by letting them know when
Gouthier would be home alone and by supplying a firearm to use in the murder, together
with a Taser and zip ties to bind Gouthier, defendant aided, promoted, encouraged and
instigated the murder.
              Defendant concedes this evidence would support a conviction for first
degree murder. He argues, however, we cannot consider this evidence because (1) the
evidence is of a deliberate and premeditated murder (a first degree murder), not a murder
without deliberation and premeditation (a second degree murder), and (2) the jury
necessarily rejected this evidence when it acquitted him of first degree murder. We
disagree.
              We do not know why the jury acquitted defendant and Nava of first degree
murder. For all we know, the jury concluded a conviction for first degree murder with
the attached special circumstance allegation was too onerous and decided to show mercy
to defendant and Nava, an act a jury has the power, but not the right to do. (People v.
Engelman (2002) 28 Cal.4th 436, 441.) A jury has the “‘undisputed power’ to acquit
regardless of the evidence.” (People v. Baca (1996) 48 Cal.App.4th 1703, 1707.) What
we do know is that after hearing all the evidence, the jury found defendant aided and
abetted the murder of Gouthier, and the only evidence of defendant’s aiding and abetting
is the evidence we referred to above. Consequently, we cannot conclude the jury rejected
that evidence, defendant’s acquittal of the first degree murder charge notwithstanding.




                                             9
B. Prosecutorial Misconduct
              “‘“‘A prosecutor’s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process. Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it
involves the use of deceptive or reprehensible methods to attempt to persuade either the
trial court or the jury.’ [Citation.] When a claim of misconduct is based on the
prosecutor’s comments before the jury, . . . ‘“the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.”’ [Citation.] To preserve a claim of prosecutorial misconduct for
appeal, a defendant must make a timely and specific objection and ask the trial court to
admonish the jury to disregard the improper argument. [Citation.]” [Citation.] A failure
to timely object and request an admonition will be excused if doing either would have
been futile, or if an admonition would not have cured the harm.’ (People v. Linton
(2013) 56 Cal.4th 1146, 1205.)” (People v. Adams (2014) 60 Cal.4th 541, 568-569.) We
review de novo whether misconduct resulted in a constitutional violation. (People v.
Spector (2011) 194 Cal.App.4th 1335, 1403.)
              Defendant claims the prosecutor committed prejudicial misconduct while
arguing to the jury. He first points to the prosecutor calling him “greedy,” “oily,”
“slimy,” and “unctuous.” The prosecutor started out his argument by stating, “We’re
here because greedy men killed Bernardo Gouthier at the behest of an angry, immature,
controlling jealous, rich man.” Defendant did not object to this initial statement.
Consequently, defendant forfeited the issue for appeal. (People v. Adams, supra, 60
Cal.4th at pp. 568-569.)
              Defendant objected to being referred as unctuous, once the prosecutor
explained the word meant oily or slimy. The objection was overruled. We conclude the
prosecutor’s use of the word unctuous did not deny defendant due process. “A

                                             10
prosecutor may argue vigorously and include opprobrious epithets and forceful language
when warranted by the evidence. [Citations.]” (People v. Herring (1993) 20 Cal.App.4th
1066, 1074.) “We have observed that a prosecutor is not ‘required to discuss his [or her]
view of the case in clinical or detached detail.’ [Citation.] ‘[T]he use of derogatory
epithets to describe a defendant is not necessarily misconduct.’ (People v. Friend (2009)
47 Cal.4th 1, 32 [defendant described as ‘“living like a mole or the rat that he is”’].) ‘A
prosecutor is allowed to make vigorous arguments and may even use such epithets as are
warranted by the evidence, as long as these arguments are not inflammatory and
principally aimed at arousing the passion or prejudice of the jury.’ [Citation.]” (People
v. Tully (2012) 54 Cal.4th 952, 1021; see People v. Edelbacher (1989) 47 Cal.3d 983,
1030 [prosecutor’s reference to defendant as a “snake in the jungle,” “slick,” was not
misconduct].) We conclude the prosecutor’s reference to defendant as unctuous was a
fleeting characterization, given the relative length of his argument, and did not amount to
misconduct. (People v. Tully, supra, 54 Cal.4th at p. 1021.)
              Later, during his closing argument, the prosecutor again called defendant
unctuous, stating, “You got to decide if you are going to have this unctuous man, this
opportunist, this manipulator, this societal parasite, if you are going to hold him
responsible for his use of other people, all to get himself a little bit of money. [¶]
[Defendant] would probably kill his own mother to get money. He’s that kind of guy.
[¶] [Defendant] would exploit three young thugs who were on a certain path in life to be
the muscle to get this stuff done for him, all without dirtying his own hands.” Again,
given the facts of this case, we find the description of defendant did not rise to the level
of misconduct.
              Additionally, defendant did not object to the prosecutor’s statement. He
claims he should be excused for not objecting because any such objection would have
been useless given the court overruled his prior objection to having been called unctuous.
Defendant’s complaint about to the present prosecutor’s statement, however, is not that

                                              11
he was referred to as slimy or oily, but rather that the prosecutor argued he was the “kind
of guy” who would murder his mother for money and that such an argument is improper.
The court’s prior decision overruling defendant’s objection to being called unctuous does
not excuse defendant’s failure to object to the prosecutor’s “kind of guy” argument. His
failure to object forfeited the issue.
               Next, defendant argues the following argument by the prosecutor was
improper because it asked the jury to consider the impact of the crime of the victim.
“You know, when you kill a man, you take the remainder, right, you steal whatever’s left.
And this was a young man, 43 years old. He would have had the 15 years that have
elapsed since then and probably another 15 or 20 after that. It was a man who had a
dream of developing this unique property into an art school. And all of that was stolen
from him by Mr. Nava, so Mr. Nava could get roughly $10 grand and a couple of cars if
he ever got fully paid from our go-between in this case.” The prosecutor went on to urge
the jury to give justice to Gouthier and the people of La Quinta, as well as Nava and
defendant. While it is improper to argue sympathy for the victim in determining the guilt
of a defendant (People v. Fields (1983) 35 Cal.3d 329, 362), defendant again failed to
preserve the issue by objecting to the prosecutor’s statement. We also note the argument
was made in connection with the issue of Nava’s guilt. In addition, because the jury
acquitted defendant of the charged first degree murder, a crime defendant concedes was
supported by substantial evidence, it does not appear the comment prejudiced defendant.


C. The Weapon Enhancement
               In supplemental briefing, the parties addressed the issue of whether the
court imposed an inapplicable firearm enhancement. The parties agree the court did.
               The information charged defendant with an enhancement for being armed
with a firearm in the commission of the murder. The allegation, however, claimed the
statute violated by defendant’s conduct was section 12022, subdivision (d). The jury

                                             12
found the enhancement true. The problem is that while there was substantial evidence
defendant was “armed” with a firearm in the course of the murder, as conceded by
defendant, subdivision (d) of section 12022 has no application in this case. At the time of
defendant’s offense, the statute provided: “Notwithstanding the enhancement set forth in
subdivision (a), any person who is not personally armed with a firearm who, knowing
that another principal is personally armed with a firearm, is a principal in the commission
of an offense or attempted offense specified in subdivision (c), shall be punished by an
additional and consecutive term of imprisonment in the state prison for one, two, or three
years.” (Former § 12022, subd. (d); Stats. 2004, ch. 494, § 3, repealed Stats. 2010, ch.
711, § 4, eff. Jan. 1, 2011, italics added.) The offenses listed in subdivision (c) of section
12022 are drug offenses set forth in certain Health and Safety Code sections. Defendant
was not charged with a Health and Safety Code violation.
              The appropriate arming enhancement in this case was subdivision (a)(1) of
section 12022. That subdivision provided: “Except as provided in subdivisions (c) and
(d), any person who is armed with a firearm in the commission of a felony or attempted
felony shall be punished by an additional and consecutive term of imprisonment in the
state prison for one year, unless the arming is an element of that offense. . . .” (Former §
12022, subd. (a)(1); Stats. 2004, ch. 494, § 3, repealed Stats. 2010, ch. 711, § 4, eff. Jan.
1, 2011.) The jury was instructed in terms of section 12022, subdivision (a)(1), not
subdivision (d).
              The parties each agree the appropriate action here is to strike the three-year
enhancement purportedly imposed pursuant section 12022, subdivision (d) and to correct
the abstract of judgment to reflect the imposition of a one-year enhancement pursuant to
section 12022, subdivision (a)(1) in its stead. Because the jury was instructed in the
terms of the appropriate arming enhancement, they found he was armed within the
meaning of the section 12022, and the evidence supports such a finding, this is the
appropriate remedy. (People v. Strickland (1974) 11 Cal.3d 946, 961; People v. Fialho

                                              13
(2014) 229 Cal.App.4th 1389, 1398-1399.) We therefore order the abstract of judgment
modified to reflect the imposition of a one-year enhancement pursuant to section 12022,
subdivision (a)(1), and strike from the abstract of judgment any reference to section
12022, subdivision (d).


D. Credits
              The trial court did not calculate defendant’s conduct credits and instead,
referred the matter to the probation department to calculate defendant’s presentence
conduct credits. The abstract of judgment indicates defendant was awarded 4,231 days
for actual time in custody prior to sentencing. No conduct credits were awarded.
Although section 2933.2 prohibits the awarding of presentence conduct credits under
section 4019 to one subsequently convicted of murder (§ 2933.2, subd. (c)), subdivision
(d) of the same statute limits its application: “This section shall only apply to murder that
is committed on or after the date on which this section becomes operative.” (§ 2933.2,
subd. (d).) The effective provision did not go into effect until June 3, 1998. (People v.
Chism (2014) 58 Cal.4th 1266, 1336.) The murder in this matter occurred in 1997, prior
to the effective date of section 2933.2.
              The Attorney General concedes the court erred in not awarding defendant
presentence conduct credits and asks us to order the abstract of judgment corrected to
reflect 534 days of presentence conduct credits. Defendant agrees with the calculation.
We will therefore order the abstract amended to reflect an award of 534 days presentence
conduct credits pursuant to section 4019.
                                             III
                                      DISPOSITION
              The imposition of a three-year enhancement pursuant to section 12022,
subdivision (d) is stricken. The abstract of judgment is ordered corrected: (1) to reflect
the imposition of a one-year enhancement pursuant to section 12022, subdivision (a)(1)

                                             14
in its stead, and (2) to reflect an award of 534 days of presentence conduct credits in
addition to the credits awarded for actual time. The judgment is otherwise affirmed.




                                                  MOORE, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                             15
