Filed 5/19/17




                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                 F071338
         Plaintiff and Respondent,
                                                      (Super. Ct. Nos. VCF274407 and
                  v.                                            VCF295423)

CHRISTOPHER ISAAC FERNANDEZ,
                                                               OPINION
         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Tulare County. Gary L. Paden,
Judge.
         Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Ivan P.
Marrs, Lewis A. Martinez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff
and Respondent.
                                         -ooOoo-
        Christopher Isaac Fernandez appeals from the denial of two petitions for
resentencing under Penal Code1 section 1170.18, which is part of the Safe
Neighborhoods and Schools Act (Proposition 47). Enacted by voter initiative in
November 2014, Proposition 47 reduced certain drug-related and property crimes from
felonies to misdemeanors. Section 1170.18 provides a mechanism by which a person
with a prior felony conviction for an offense that is now classified as a misdemeanor
under statutes added or amended by Proposition 47 can petition to have their conviction
designated as a misdemeanor and be resentenced accordingly. (§ 1170.18, subds. (a),
(f).)
        The issues on appeal pertain to an eligibility restriction set forth in
section 1170.18, subdivision (i) (section 1170.18(i)), which excludes “persons who have
one or more prior convictions for an offense specified in clause (iv) of subparagraph (C)
of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration
pursuant to subdivision (c) of Section 290.” The parties dispute whether the term “prior
convictions” is meant to include juvenile adjudications. The Fourth District Court of
Appeal recently considered this question in People v. Sledge (2017) 7 Cal.App.5th 1089
(Sledge) and concluded that section 1170.18(i) incorporates the definition provided in
section 667, subdivision (d), which specifies that juvenile adjudications are treated as
convictions only when “[1] The juvenile was 16 years of age or older at the time he or
she committed the prior offense[;] [2] The prior offense is listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code or described in [section 667,
subdivision (d)(1) or (d)(2)] as a serious and/or violent felony[;] [3] The juvenile was
found to be a fit and proper subject to be dealt with under the juvenile court law[;] [and]
[4] The juvenile was adjudged a ward of the juvenile court within the meaning of


        1   Except where otherwise specified, all further statutory references are to the Penal
Code.


                                                2.
Section 602 of the Welfare and Institutions Code because the person committed an
offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.”
(§ 667, subd. (d)(3)(A)-(D); Sledge, supra, 7 Cal.App.5th at p. 1099.)
       We agree with the analysis in Sledge, but its holding is not entirely dispositive of
the issues in this case. It remains to be determined how the reference in
section 1170.18(i) to “an offense requiring registration pursuant to subdivision (c) of
Section 290” should be interpreted in light of the definition provided in section 667,
subdivision (d). As will be discussed, individuals who are required to register as sex
offenders because of a juvenile adjudication must do so pursuant to section 290.008, not
section 290, subdivision (c). Furthermore, not all juvenile adjudications for offenses
listed in section 290, subdivision (c) qualify as convictions under the definition provided
in section 667, subdivision (d), e.g., an adjudication for an offense committed before the
juvenile turned 16 years old. We adopt the holding in Sledge and further conclude that a
juvenile adjudication for an offense listed in section 290, subdivision (c) does not
constitute a prior conviction for purposes of section 1170.18(i) unless the prerequisite
conditions listed in section 667, subdivision (d)(3) are also satisfied.
       It appears the trial court relied on an erroneous interpretation of the statute when it
denied Fernandez’s petitions. The challenged orders would ordinarily be upheld if the
trial court reached the correct result, even if on the wrong legal theory, but the record
does not contain enough information for us to make that determination. We reverse the
orders and remand for further proceedings.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Fernandez petitioned the Tulare County Superior Court for relief under
section 1170.18 in relation to a December 2012 conviction for possession of a controlled
substance (Health & Saf. Code, former § 11377) and a March 2014 conviction for
receiving stolen property (former § 496, subd. (a)). A separate petition was filed as to
each conviction. In written oppositions, the People submitted that Fernandez was not

                                              3.
entitled to relief because he “has a conviction for an offense listed under Penal Code
290(c).” The petitions were summarily denied by the trial court in orders filed on
December 10, 2014.
       On January 9, 2015, Fernandez filed two identical requests entitled, “Motion To
Schedule Hearing Over District Attorney’s Objection For Re-Sentencing And Reduction
To A Misdemeanor Pursuant to Proposition 47.” The moving papers alleged that the
“convictions” referenced in the People’s oppositions were actually juvenile adjudications
for offenses that required registration under section 290.008. The matter was heard on
February 9, 2015, at which time the trial court noted Fernandez’s conviction for receiving
stolen property “would be suitable for reduction, as it appears the value of the property
was under $250.”2 The deputy district attorney interjected: “Your Honor, in this case, the
defendant has an adjudication for a sex offense. … That’s also a super strike so we were
saying that he is not eligible.” When Fernandez’s attorney sought clarification regarding
which petition was being discussed, the trial court said, “He’s not eligible for any of
[them] because he has to register per Penal Code 290, and that excludes him from relief
under Prop. 47.” Both petitions were therefore denied.
       On March 23, 2015, Fernandez filed a notice of appeal and request for certificate
of probable cause. The certificate of probable cause was issued the following day. We
subsequently granted his unopposed request for judicial notice of two juvenile court
records. The first of those records is a minute order from a November 18, 1999 hearing,
when Fernandez was 15 years old, which reflects his admission of the truth of allegations
made in a wardship petition regarding a violation of section 288, subdivision (b)(1). The
second document is a minute order from a September 10, 2001 hearing, when Fernandez


       2 Proposition 47 allows a defendant to be resentenced and have their felony
conviction for receiving stolen property deemed a misdemeanor upon a showing that the
value of the stolen property did not exceed $950. (§§ 1170.18, subds. (a) & (b), 496,
subd. (a).)


                                             4.
was 17 years old, which reflects his admission of the truth of allegations in a wardship
petition regarding behavior proscribed by “PC 288,” but does not specify the subdivision
that was violated. The record on appeal contains no additional evidence of the prior
adjudications or any details concerning the underlying offenses.
                                       DISCUSSION
Standard of Review
       “Proposition 47, like [the Three Strikes Reform Act of 2012 (Proposition 36)],
requires the petitioning defendant to establish his or her initial eligibility for relief—
which, under Proposition 47, is a prior felony conviction that would have been a
misdemeanor if Proposition 47 had been in effect at the time of the offense. [Citations.]
‘Also like Proposition 36, Proposition 47 then allows the prosecution the opportunity to
oppose the petition by attempting to establish that the petitioning defendant is ineligible
for resentencing. [Citation.] This may be accomplished either (1) by rebutting the
petitioning defendant’s evidence … or (2) by demonstrating that the petitioning
defendant suffered a conviction of one or more of the offenses specified in
section 1170.18, subdivision (i).’ ” (Sledge, supra, 7 Cal.App.5th at p. 1094.) It is the
People’s burden to establish the existence of a disqualifying prior conviction by a
preponderance of the evidence. (Id. at p. 1095.)
       A trial court’s factual findings are reviewed for substantial evidence. (Sledge,
supra, 7 Cal.App.5th at p. 1095.) The interpretation of a statute enacted as part of a voter
initiative is a legal issue, which is reviewed de novo. (Ibid.) “When we interpret an
initiative, we apply the same principles governing statutory construction. We first
consider the initiative’s language, giving the words their ordinary meaning and
construing this language in the context of the statute and initiative as a whole. If the
language is not ambiguous, we presume the voters intended the meaning apparent from
that language, and we may not add to the statute or rewrite it to conform to some assumed
intent not apparent from that language. If the language is ambiguous, courts may

                                              5.
consider ballot summaries and arguments in determining the voters’ intent and
understanding of a ballot measure.” (People v. Superior Court (Pearson) (2010)
48 Cal.4th 564, 571.)
Statutory Interpretation
       To reiterate, the statute in question is section 1170.18(i), which reads: “The
provisions of this section shall not apply to persons who have one or more prior
convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290.” (Italics added.) Fernandez argues that because his “two
sex offense priors are not convictions, but juvenile adjudications, he is not subject to the
exclusionary provision….” The People maintain Fernandez is ineligible for relief
because he was previously adjudicated of violating section 288, which is an offense listed
in section 667, subdivision (e)(2)(C)(iv). The analysis is more complicated than either
party suggests.
       Our state Supreme Court has explained that “conviction” is a term of art usually
associated with adult proceedings, and when used in statutory language, is ordinarily
construed “as applying only in cases of adult convictions.” (In re Derrick B. (2006)
39 Cal.4th 535, 540 (Derrick B.).) “Under the juvenile court law, a person adjudged a
ward of the court has not been ‘convicted’ of anything.” (Id. at p. 541.) Accordingly,
Welfare and Institutions Code section 203 mandates that “[a]n order adjudging a minor to
be a ward of the juvenile court shall not be deemed a conviction of a crime for any
purpose….” The Derrick B. opinion instructs that appellate courts are to “employ a
presumption that when the language of a statute uses a term that has been judicially
construed, the term is used in the precise sense which the court gave it.” (39 Cal.4th at
p. 540.) In our effort to interpret section 1170.18(i), “ ‘[w]e must assume that the
voters … were aware of Welfare and Institutions Code section 203 and judicial
constructions of its terms.” (Derrick B., supra, 39 Cal.4th at p. 540.)

                                             6.
       In Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209 (Alejandro N.),
Division One of the Fourth District held that juvenile offenders are generally entitled to
the benefits of section 1170.18. The appellate court reasoned that “Welfare and
Institutions Code section 602 provides for a minor to be declared a ward of the juvenile
court when the minor commits a crime set forth in the Penal Code and other codes
defining criminal offenses primarily in the adult criminal context. The section thereby
incorporates the entire body of laws defining criminal offenses as the basis for juvenile
wardship jurisdiction. Accordingly, when a criminal offense is reclassified from a felony
to a misdemeanor in the adult context—as occurred under Proposition 47—the
reclassification likewise applies in juvenile wardship proceedings.” (Alejandro N., supra,
238 Cal.App.4th at pp. 1216-1217.)
       The Alejandro N. opinion goes on to state, “[W]e presume the Proposition 47
voters were aware that under Welfare and Institutions Code section 602, criminal
substantive offenses in the adult arena are used to determine when a juvenile should be
declared a ward of the court, and that changes to these adult criminal offenses would
effectuate corresponding changes in the substantive offenses applied in the juvenile
arena…. Considered in its broader context, section 1170.18’s use of adult criminal
terminology does not reflect an intent to exclude juvenile offenders from its provisions.”
(238 Cal.App.4th at p. 1225.) We express no opinion regarding the ultimate conclusion
in Alejandro N., but do not read it to hold, as the People suggest, that the word
“conviction” was intended to be synonymous with “juvenile adjudication” in every
provision of the statute. After all, the voters are presumed to have been equally familiar
with the language of Welfare and Institutions Code section 203 (“An order adjudging a
minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for
any purpose….”) and judicial constructions of its terms. (Derrick B., supra, 39 Cal.4th at
p. 540 [“ ‘This court and the Courts of Appeal have consistently agreed that adjudications
under Welfare and Institutions Code section 602 are not criminal convictions.’ ”].)

                                             7.
       In Sledge, supra, Division Three of the Fourth District was confronted with the
same issue presented in this case: does the term “prior convictions” in section 1170.18(i)
include juvenile adjudications? The Sledge opinion focuses on the statute’s cross-
reference to offenses specified in section 667, subdivision (e)(2)(C)(iv). “In turn,
[section 667, subdivision, (e)(2)(C)(iv)] applies when: ‘The defendant suffered a prior
serious and/or violent felony conviction, as defined in subdivision (d) of this section, for
any of the following felonies.’ (Italics added.) The list of felonies includes various sex,
violence and homicide offenses, which are sometimes referred to as ‘super strikes.’ ”
(Sledge, supra, 7 Cal.App.5th at p. 1099.)
       “Finally, subdivision (d)(3) of section 667 (section 667(d)(3)) provides: ‘A prior
juvenile adjudication shall constitute a prior serious and/or violent felony conviction for
purposes of sentence enhancement if: [¶] (A) The juvenile was 16 years of age or older at
the time … . [¶] (B) The prior offense is listed in subdivision (b) of Section 707 of the
Welfare and Institutions Code or described in paragraph (1) or (2) as a serious and/or
violent felony. [¶] (C) The juvenile was found to be a fit and proper subject to be dealt
with under the juvenile court law. [¶] (D) The juvenile was adjudged a ward of the
juvenile court … because the person committed an offense listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code.’ (Italics added.)” (Sledge, supra,
7 Cal.App.5th at p. 1099.)
       “Reading these statutes together, and giving the unambiguous words in them their
usual and ordinary meaning, we conclude a felony juvenile adjudication is a disqualifying
prior conviction within the meaning of section 1170.18(i): if it is one of the super strike
offenses listed in section 667(e)(2)(C)(iv); if it is either an offense listed in Welfare and
Institutions Code section 707, subdivision (b), or an offense described in section 667(d),
paragraph (1) or (2) as a serious or violent felony; and if all of the other conditions set out
in section 667(d)(3) are satisfied.” (Sledge, supra, 7 Cal.App.5th at p. 1099.)



                                              8.
       In reaching its conclusion, the appellate panel in Sledge recognized and apparently
followed our District’s analysis in People v. Arias (2015) 240 Cal.App.4th 161, 166–169
(Arias). (Sledge, supra, 7 Cal.App.5th at p. 1100.) The issue in Arias was the definition
of “prior convictions” as used in section 1170.126, subdivision (e), which prohibits
resentencing under Proposition 36 of individuals with “prior convictions for any of the
offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e)
of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of
Section 1170.12.” (§ 1170.126, subd. (e)(3).) Despite the rule that juvenile adjudications
are not to be treated as criminal convictions for any purpose (Welf. & Inst. Code, § 203),
Arias holds that “Welfare and Institutions Code section 203 is superseded” in the context
of Proposition 36’s exclusionary provisions given the cross-reference to statutes
containing definitions that “expressly apply notwithstanding any other law (§§ 667,
subd. (d), 1170.12, subd. (b)), thus evidencing the Legislature’s and electorate’s intent
that they prevail over all contrary law [citation].” (Arias, supra, 240 Cal.App.4th at
pp. 167-168.) Therefore, a juvenile adjudication constitutes a prior conviction for
purposes of section 1170.126, subdivision (e) if the conditions listed in section 667,
subdivision (d) or section 1170.12, subdivision (b) are satisfied because the latter statutes
specifically define the word “conviction” to include certain juvenile adjudications.
       We agree with the holding of Sledge, i.e., that a prior juvenile adjudication may
constitute a disqualifying prior conviction within the meaning of section 1170.18(i) if all
of the conditions set forth in section 667, subdivision (d) are satisfied. (Sledge, supra,
7 Cal.App.5th at p. 1099.) This is so because “ ‘the definition of “conviction of a serious
and/or violent felony” contained in section 667(d) is incorporated … in
section 1170.18(i), and since that definition specifically includes designated juvenile
adjudications … [Citation].” (Sledge, at p. 1100.) However, we are not persuaded by the
dicta contained in a footnote at the end of the Sledge opinion, which arguably implies that



                                             9.
any prior adjudication for an offense listed in section 290, subdivision (c) must always be
treated as a disqualifying prior conviction.3 (Sledge, at p. 1104, fn. 6.)
       Again, the statute precludes relief for individuals previously convicted of an
offense listed in section 667, subdivision (e)(2)(C)(iv) “or for an offense requiring
registration pursuant to subdivision (c) of Section 290.” (§ 1170.18, subd. (i).) However,
a juvenile adjudication for an offense listed in section 290, subdivision (c) does not
require registration pursuant to that code section. Such individuals are required to
register as sex offenders pursuant to section 290.008, which was enacted well before the
passage of Proposition 47.4 More importantly, not all juvenile adjudications for offenses
listed in section 290, subdivision (c) qualify as convictions under section 667,
subdivision (d). The Sledge petitioner’s juvenile adjudication for forcible rape would not
have constituted a prior conviction had the offense been committed when he was under
the age of 16. (§ 667, subd. (d)(3)(A); People v. Dunn (2016) 2 Cal.App.5th 153, 156,
fn. 3 (Dunn).)



       3  The petitioner in Sledge had a prior adjudication for committing forcible rape at
the age of 17. (Sledge, supra, 7 Cal.App.5th at pp. 1094, 1104.) Footnote six of the
opinion states: “We have affirmed on the only grounds actually considered by the trial
court and briefed by the parties in this appeal—defendant’s felony juvenile adjudication
for forcible rape is a disqualifying prior conviction because it is, ‘for an offense specified
in [section 667, subdivision (e)(2)(C)(iv)] … .” (§ 1170.18(i).) However, there appears
to be alternative grounds for reaching the same result. Defendant’s felony juvenile
adjudication for forcible rape may also be a disqualifying prior conviction because it is
‘for an offense requiring registration pursuant to subdivision (c) of Section 290.’ (Ibid.)
It is indisputable that rape by force is an offense requiring such registration. (§§ 261,
subd. (a)(2), 290, subd. (c).) Plus it makes no difference that defendant was not and
perhaps could not have been ordered to register. The emphasis in section 1170.18(i) is on
the conviction for an offense requiring registration, not the registration status of the
offender.”
       4 Section 290, former subdivision (d)(3), which established the sex offender
registration requirements for juvenile offenders, was reenacted as section 290.008
effective October 13, 2007. (Stats. 2007, ch. 579, §§ 7, 8, 16.)


                                             10.
       “It is a settled rule of statutory construction that ‘where exceptions to a general
rule are specified by statute, other exceptions are not to be implied or presumed.’ ”
(Quarry v. Doe I (2012) 53 Cal.4th 945, 970.) Section 1170.18(i) incorporates portions
of section 667 and section 290, but only the former defines a conviction to include certain
juvenile adjudications. Section 290, subdivision (c) makes no mention of juvenile
adjudications nor does it expressly or impliedly supersede Welfare and Institutions Code
section 203. If the electorate had wanted all juvenile adjudications for offenses listed in
section 290, subdivision (c) to be treated as disqualifying convictions, the statute could
have easily been worded to reflect such an intent. For example, section 666, which was
amended by Proposition 47, is an exclusionary provision that applies to “any person who
is required to register pursuant to the Sex Offender Registration Act, or who has a prior
violent or serious felony conviction, as specified in clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667….” (§ 666, subd. (b).) The Sex Offender
Registration Act encompasses sections 290 to 290.024, which includes the statute
governing juvenile sex offender registration, section 290.008. (§ 290, subd. (a); Dunn,
supra, 2 Cal.App.5th at p. 156.) Section 666 has thus been construed as
“unambiguously” expressing the intent to make both adult and juvenile sex offenders
ineligible for relief. (Dunn, supra, 2 Cal.App.5th at p. 157.)
       Pursuant to the foregoing analysis, we hold that prior juvenile adjudications
constitute “prior convictions” within the meaning of section 1170.18(i) if they would be
treated as such under section 667, subdivision (d). The prerequisite conditions are as
follows: (1) the juvenile was 16 years of age or older at the time he or she committed the
prior offense; (2) the prior offense is listed in subdivision (b) of Section 707 of the
Welfare and Institutions Code or is described as a serious and/or violent felony in
subdivision (d)(1) or (d)(2) of section 667 of the Penal Code; (3) the juvenile was found
to be a fit and proper subject to be dealt with under the juvenile court law; and (4) the
juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of

                                             11.
the Welfare and Institutions Code because the person committed an offense listed in
subdivision (b) of Section 707 of the Welfare and Institutions Code. (§ 667,
subd. (d)(3)(A)-(D).) Therefore, a juvenile adjudication for an offense listed in
section 667, subdivision (e)(2)(C)(iv) or section 290, subdivision (c) is not a prior
conviction for purposes of section 1170.18(i) unless the conditions listed in section 667,
subdivision (d)(3) are satisfied.
Sufficiency of the Evidence
       With regard to the People’s allegation that he has a disqualifying prior conviction,
Fernandez complains “[t]he prosecutor failed to specify what this offense was or when it
occurred and did not present any evidence to support this assertion….” We interpret
these arguments as a challenge to the sufficiency of the evidence supporting the trial
court’s ruling. The challenged orders are presumed correct, and all reasonable inferences
are drawn in favor thereof, but the trial court’s express and implied findings must
nevertheless be supported by substantial evidence. (Sledge, supra, 7 Cal.App.5th at
pp. 1095, 1103.) In this context, substantial evidence refers to “ ‘evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could’
[citation] make the historical factual finding [of a disqualifying prior conviction] under
the preponderance of the evidence standard.” (Id. at p. 1096.)
       As discussed, the trial court denied Fernandez’s petitions “because he has to
register per Penal Code [section] 290.” Insofar as the trial court was referring to a prior
juvenile adjudication for an offense listed in section 290, subdivision (c), we have
explained why such circumstances are not necessarily dispositive of the eligibility issue.
If Fernandez’s juvenile adjudications for sex offenses are limited to those reflected in the
records of which we have taken judicial notice, at least one of them does not constitute a
prior conviction for purposes of section 1170.18(i). The minute order from the
November 18, 1999 hearing indicates Fernandez was 15 years old when he admitted to
allegations of violating section 288, subdivision (b)(1), which means the underlying

                                             12.
incident must have occurred prior to his sixteenth birthday. Because he was not 16 years
of age or older at the time he committed the offense, this prior juvenile adjudication does
not render him ineligible for relief. (§ 667, subd. (d)(3)(A); Dunn, supra, 2 Cal.App.5th
at p. 156, fn. 3.)
       The second judicially noticed document shows Fernandez was adjudicated of
committing a “PC 288” offense at the age of 17. His briefs allege this was for a violation
of section 288, subdivision (a), but we find nothing in the record to substantiate that
contention. The missing information is critical because section 288, subdivision (a) is not
an offense listed in Welfare and Institutions Code section 707, subdivision (b), which
means an adjudication for that offense is unlikely to qualify as a prior conviction within
the meaning of section 1170.18(i). (See § 667, subd. (d)(3)(D); In re C.H. (2011)
53 Cal.4th 94, 99, fn. 3; People v. Cole (2007) 152 Cal.App.4th 230, 236 (Cole).) “[A]
section 288, subdivision (a) adjudication is a strike [i.e., a prior conviction as defined by
section 667, subdivision (d)] only if, in the same prior juvenile case, the ward was
adjudged as such based not only on the section 288, subdivision (a) finding but also on a
finding the ward committed another offense, one listed in Welfare and Institutions Code
section 707, subdivision (b).” (Cole, supra, 152 Cal.App.4th at p. 236.)
       We cannot ascertain from the record whether Fernandez has a disqualifying prior
juvenile adjudication. Because the trial court’s finding that he is ineligible for relief
under section 1170.18 is not supported by substantial evidence, we reverse and remand
for further proceedings.
                                      DISPOSITION
       The orders appealed from are reversed and the matter is remanded for further
proceedings in accordance with section 1170.18. On remand, if the trial court rules on
the merits of the petitions without a hearing, it should describe the evidentiary basis for
its factual findings. Alternatively, the trial court may hold a hearing and provide the



                                             13.
parties an opportunity to present additional evidence with regard to Fernandez’s
eligibility for relief in light of this opinion.



                                                               _____________________
                                                                   GOMES, Acting P.J.
WE CONCUR:


 _____________________
PEÑA, J.


 _____________________
SMITH, J.




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