Filed 2/6/14 P. v. Garcia CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B241780
                                                                           (Super. Ct. No. LA065394)
     Plaintiff and Respondent,                                               (Los Angeles County)

v.

BRAULIO S. GARCIA,

     Defendant and Appellant.



                   Braulio S. Garcia appeals from the judgment following his conviction by
jury of attempted willful, deliberate and premeditated murder (Pen. Code, §§ 664, 187,
subd. (a));1 possession of a firearm by a felon (former § 12021, subd. (a)(1)); and
attempted criminal threats (§§ 664, 422). The jury found true allegations that appellant
personally used a firearm in the attempted murder (§ 12022.53, subds. (b) & (d)), and that
he intended to benefit a criminal street gang when he attempted to murder and threaten
the victim (§ 186.22, subd. (b)(1)(C)). The trial court sentenced him to state prison for 31
years to life. Appellant contends the trial court violated his Sixth Amendment right to
confrontation in finding the victim was unavailable for trial and admitting his preliminary
hearing testimony, and deprived him of his right to present a defense by excluding the
victim's statement expressing fear of third parties. He also challenges the sufficiency of

                   1 All statutory references are to the Penal Code unless otherwise stated.
the evidence to support his attempted criminal threat conviction and the finding that he
intended to benefit a gang when he attempted to threaten and kill the victim. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
                         Attempted Criminal Threat - June 2010
              In early June 2010, Francisco Bautista left his Variel Street residence in
Canoga Park to walk to work. Juan Tellez nearly hit Bautista with his truck. He
recognized Juan, who lived with his brother Jose, across the street from Bautista. Juan
and Jose were known as the "Michoacán brothers." Appellant, whom Bautista knew as
Necio, was with Juan. Bautista argued with Juan and pushed him. During the fight,
appellant told Bautista, "Be very careful. When I was out of jail I killed two people. I
killed two people in El Cielito. You don't know who I am[.] I know who you are. . . . I'm
Canoga." Minutes later, Bautista continued walking to work.
                            June 21, 2010, Attempted Murder
              On June 21, 2010, just before 8:00 p.m., Bautista and several other men
were gathered in the back yard of Carlos Padillos' equestrian property at 7449 Eton
Avenue in Canoga Park. Bautista was sitting at a table, drinking beer and talking with
other men. About 10 minutes after Bautista's arrival, appellant arrived with two men
known as "Sicko" and "Flaco." They approached Bautista. Sicko greeted Bautista
briefly, then stepped aside. Appellant, who had been behind Sicko, said, "Here you go[,]
[h]ere you go[, [c]]abron," and shot Bautista from a distance of about 15 feet. Sicko is
the moniker of Canoga member Alejandro Flores.
              Everyone except Padillos fled from his back yard immediately after the
shooting. Los Angeles Police Department Officers Eloy Navarro and Cesar Flores
responded to an "ambulance shooting" call at 8449 Eton Avenue. They found Bautista
lying in a pool of blood in the front yard of a residence. When asked who shot him,
Bautista responded, "The Michoacán brothers did it." He gave Navarro their address at
8325 Variel Avenue, apartment 19. Bautista said, "I think I'm going to die." An
ambulance took him to a hospital, where he remained for 22 days. As a result of the
shooting, Bautista must wear a colostomy bag.

                                             2
              Several officers immediately went to the Tellez apartment. One of the
Tellez brothers answered the door. They both complied when officers directed them to
step outside. Officers handcuffed and detained both Juan and Jose before searching the
apartment. Officer Peter Victorino found a .45-caliber semiautomatic handgun and an
empty magazine hidden inside the apartment's wall heater. The gun was not loaded.
Victorino also found a .38-caliber revolver in the family room. It was concealed under a
bag, inside a trash container. The officers found appellant hiding under a bed.
               While investigating the crime scene on the night of the shooting, Detective
Foster Rains recovered seven expended .45-caliber cartridge casings and one expended
projectile from Padillos' back yard. Subsequent testing established that all seven
cartridge casings were fired by the .45-caliber handgun.
              Jose Diaz testified that he was sitting with Bautista at the table in Padillos'
back yard on June 21, 2010. He saw two men approach Bautista and say something like,
"What's up?" The men moved away quickly and appellant shot Bautista. Appellant and
his companions left. Bautista fell and Diaz hid behind a fence. When Diaz came back
out, everyone was gone.
              On June 21, 2010, Officer Juan Estrada took Padillos from his residence to
the Tellez apartment on Variel. Padillos was crouching in the back seat of the police car,
and sought reassurance that the suspect (appellant) could not see him. Padillos saw
appellant and said, "Yes. That's him. I saw him running away from my backyard . . .
after I heard the gun go off." Later that night, while he was alone with Officer Navarro in
his back yard, Padillos said, "You have the right guy. You have the right guy. You have
him. You have the right guy." At the time, Padillos seemed fearful, his voice quivered,
and he was whispering although the back yard was empty. At trial, Padillos testified he
heard gun shots but did not see the shooting because it occurred while he was busy caring
for his horses. Padillos also denied that he saw the Michoacán brothers that night. He
further testified he did not recall that he spoke with police officers that night or
accompanied them to identify a suspect.


                                               3
                                         DISCUSSION
                                      Evidentiary Claims
                                                   I
                   Admission of Victim's Preliminary Hearing Testimony
               Appellant argues that the trial court erred and violated his constitutional
right to confrontation by admitting Bautista's preliminary hearing testimony because the
prosecution did not exercise due diligence to secure his presence at trial. Appellant
makes a related argument that his counsel's concession of due diligence at trial deprived
him of the effective assistance of counsel. Respondent argues that appellant waived this
claim by conceding the due diligence issue. Waiver aside, we reject appellant's
arguments as meritless.
               Bautista testified at appellant's preliminary hearing, and was cross-
examined by counsel. Bautista failed to appear at trial, despite his repeated assurances
that he would do so. The prosecution moved to introduce Bautista's preliminary hearing
testimony at trial, based upon his unavailability. During the hearing on its motion, the
prosecution presented the following evidence of its efforts to secure Bautista's attendance
at trial:
               In September 2010, Bautista went to Mexico to seek medical treatment for
his gunshot wounds. He provided the prosecution with telephone numbers and addresses
of his mother and his brother. In late October, Detective Ray Diaz received inquiries
from Bautista about the status of this case. Diaz sensed that Bautista might be somewhat
hesitant to testify, and fearful of retaliation.
               On March 17, 2011, and May 4, 2011, Diaz sent email messages to
Bautista. He did not reply. Diaz sought assistance from Department of Homeland
Security Special Agent David Baltazar to contact Bautista in Mexico. Baltazar tried to
contact Bautista by telephone. He eventually reached his brother, Rigoberto, who
provided Baltazar with a different telephone number for their mother. Baltazar tried but
failed to reach anyone at that number. Baltazar next called Rigoberto and asked him to
convey a message to Bautista. He agreed to do so.

                                                   4
              On July 7, 2011, Bautista telephoned Baltazar. Bautista said he "was doing
well health wise, but . . . needed financial assistance." On July 20, 2011, Baltazar told
Bautista he needed to come to the United States to testify at trial. Bautista said he was
willing to do so. Baltazar tried to contact Bautista in October 2011, to check on his
status. He also called Rigoberto and learned Bautista no longer had a cell phone. On
January 9, 2012, Baltazar called their mother's number and spoke with Rigoberto, who
said Bautista was working in the field. Baltazar left a message asking that Bautista call
him.
              Baltazar called Bautista's number on January 17, 2012, and heard a
recording with English and Spanish statements explaining he was no longer available or
was out of the area. On January 19, 2012, Baltazar contacted Rigoberto and obtained
Bautista's new telephone number. He reached Bautista, who again indicated he needed
money. Bautista gave Baltazar another contact number. On January 20, 2012, Baltazar
told Bautista the prosecution would take care of his travel expenses. Bautista said he
wanted to stay in Mexico to care for his daughter. Bautista also told Baltazar he was
afraid. Bautista "said the main reason for Michoacan is in Canoga Park [sic], and he was
afraid to come over." Baltazar tried to call Bautista on January 30, 2012. His outgoing
message stated his phone was outside the coverage area or no longer in service.
Baltazar's subsequent attempts to contact Bautista were fruitless.
              In February 2012, Homeland Security Special Agent Eddy Wang obtained
a second "significant public benefit parole visa" for Bautista to enter the United States to
testify at trial. (Wang had obtained another visa for Bautista in December.)
              In response to the trial court's inquiry about the adequacy of the
prosecution's efforts to secure Bautista's attendance at trial, appellant's counsel stated: "I
can't see what more the D.A. could have done if . . . the victim, does not want to come.
[A]s far as their exhausting all their remedies, I'm fairly familiar with immigration law.
And I know it's pretty difficult to get somebody to come here for 90 days and have to
leave. . . . So there are issues here with the colostomy bag and everything. He didn't want
to be here, and they can't force him. He did not want to be here. I can't find any

                                              5
objection to the due diligence argument. I think they've done everything they could
outside of locking him up." The court found that the prosecution had exercised due
diligence in trying to secure Bautista's attendance at trial. It further found that Bautista
was afraid to attend trial. The court ruled that the prosecution could read Bautista's
preliminary hearing testimony at trial. Appellant's counsel stated, "We're okay with the
preliminary hearing transcript . . . as redacted."
              We independently decide the issue of due diligence. (People v. Cromer
(2001) 24 Cal.4th 889, 901 [appellate courts should independently review trial court's
determination that prosecution's failed efforts to locate an absent witness are sufficient to
justify an exception to the defendant's constitutionally guaranteed right of
confrontation].)
              The constitutional right to confront witnesses is not absolute. (People v.
Herrera (2010) 49 Cal.4th 613, 621.) An exception exists where a witness is unavailable
but has given testimony at a previous judicial proceeding against the same defendant and
was subject to cross-examination. (Ibid.) "Pursuant to this exception, the preliminary
hearing testimony of an unavailable witness may be admitted at trial without violating a
defendant's confrontation right." (Ibid.) This traditional exception is codified in
Evidence Code section 1291, subdivision (a)(2). (Ibid.)
              A witness is unavailable within the meaning of Evidence Code section
1291 if he is "[a]bsent from the hearing and the proponent of his or her statement has
exercised reasonable diligence but has been unable to procure his or her attendance by the
court's process." (Evid. Code, § 240, subd. (a)(5).) Factors that the court should consider
in determining whether the prosecutor has shown reasonable diligence include the
timeliness of the search, the importance of the witness's testimony, and whether leads to
the witness's possible location were reasonably explored. (People v. Thomas (2011) 51
Cal.4th 449, 500.) We independently review the prosecution's claim of good faith and
reasonable diligence. (People v. Herrera, supra, 49 Cal.4th at p. 623.)
              In arguing that the "prosecution did not establish due diligence in securing
[Bautista's] attendance at trial," appellant relies in large part upon People v. Sandoval

                                               6
(2001) 87 Cal.App.4th 1425, 1432. He argues that the prosecution should have sought
assistance from Mexico, pursuant to its treaty with the United States concerning
cooperation in criminal cases, to bring Bautista to California, or arrange for him to testify
in Mexico. We disagree.
              "An appellate court 'will not reverse a trial court's determination [under
Evid. Code, § 240] simply because the defendant can conceive of some further step or
avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained
and substantial good faith efforts were undertaken, the defendant's ability to suggest
additional steps (usually, as here, with the benefit of hindsight) does not automatically
render the prosecution's efforts "unreasonable." [Citations.] The law requires only
reasonable efforts, not prescient perfection.' [Citations.] 'That additional efforts might
have been made or other lines of inquiry pursued does not affect [a] conclusion [there
was due diligence] . . . . It is enough that the People used reasonable efforts to locate the
witness.' [Citation.]" (People v. Diaz (2002) 95 Cal.App.4th 695, 706.) The
requirements to establish due diligence and unavailability under Evidence Code section
240, subdivision (a)(5) and the federal Constitution "are the same." (People v. Herrera,
supra, 49 Cal.4th at p. 622.)
              Here the prosecution expended considerable efforts to secure Bautista's
attendance at trial. Bautista provided the prosecution with contact information (addresses
and telephone numbers) for two of his relatives in Mexico. When the prosecution
detective could not reach Bautista, he obtained help from the Department of Homeland
Security. The prosecution detective and homeland security agents collectively attempted
to contact Bautista, often with success, at least a dozen times following his September
2010 departure for Mexico. In July 2011, Bautista told a homeland security agent he was
willing to attend trial. A homeland security agent acquired a visa to facilitate Bautista's
entering the United States to attend trial. When that visa expired, the agent acquired a
second visa. After Bautista told the agent he needed financial assistance, the prosecution
arranged to cover the expenses of his attending trial. The agent conveyed that
information to Bautista. The record establishes that the prosecution exercised due

                                              7
diligence to secure Bautista's attendance at trial. Consequently, trial counsel's concession
of due diligence did not deprive appellant of the effective assistance of counsel. (In re
Thomas (2006) 37 Cal.4th 1249, 1256, 1265 [ineffective assistance of counsel claim fails
absent showing a reasonable probability that but for counsel's errors, the result of the
proceeding would have been different].)
                                             II
         Exclusion of Evidence Relevant to Victim's Fear of Michoacán Brothers
              Appellant further contends the trial court violated his constitutional right
to present a defense by excluding Agent Baltazar's testimony describing statements
Bautista made to him in January 2012. We disagree.
              Before trial, the prosecution moved to exclude any reference to the reasons
for Bautista's unavailability. Trial counsel objected and indicated his intention to call
Agent Baltazar to testify that Bautista said he was afraid of the Michoacán brothers.
Counsel argued that such statements were relevant to a key issue at trial, the identity of
the shooter. Appellant subsequently filed a motion seeking to present the following
portion of Baltazar's examination and testimony from the due diligence hearing: "Q Did
[Bautista] mention in that contact that he was afraid to come back to the United States
and testify? [¶] A He did state he was afraid. He said the main reason for Michoacán is
in Canoga Park [sic], and he was afraid to come over." The court ruled the statement was
inadmissible hearsay. It also excluded it pursuant to Evidence Code section 352,2
because it was unclear what Bautista meant when he said "Michoacán."
              Appellant does not dispute that the proffered testimony constitutes hearsay.
He argues the evidence was nonetheless admissible to impeach Bautista. The trial court
properly rejected that argument below. (People v. Pearson (2013) 56 Cal.4th 393, 455




              2 Evidence Code section 352 provides as follows: "The court in its
discretion may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

                                              8
[exclusion of marginal impeachment evidence pursuant to Evid. Code, § 352 does not
generally violate a defendant's constitutional rights to confrontation].)
              The exclusion of the proffered testimony did not violate appellant's
constitutional right to present a defense. In People v. Ayala (2000) 23 Cal.4th 225, 266,
the defendant asserted that the trial court violated his constitutional rights by excluding
potentially exculpatory but unreliable hearsay evidence. In rejecting his claim, our
Supreme Court stated, "'[f]ew rights are more fundamental than that of an accused to
present witnesses in his own defense. [Citations.] [But i]n the exercise of this right, the
accused, as is required of the State, must comply with established rules of procedure and
evidence designed to assure both fairness and reliability in the ascertainment of guilt and
innocence.' [Citation.] Thus, '[a] defendant does not have a constitutional right to the
admission of unreliable hearsay statements.' [Citations.] Moreover, both we [citation]
and the United States Supreme Court [citation] have explained that Chambers [v.
Mississippi (1973) 410 U.S. 284] is closely tied to the facts and the Mississippi evidence
law that it considered. Chambers is not authority for the result defendant urges here."
(Ayala, at p. 269; see also People v. Garcia (2005) 134 Cal.App.4th 521, 539 [exclusion
of hearsay statement recounting another man's confession to charged crimes did not
deprive defendant of fair trial]; People v. Abilez (2007) 41 Cal.4th 472, 503 [discretionary
evidentiary ruling did not violate right to present a defense].)
              "Application of [the] ordinary rules of evidence to . . . proffered testimony
did not impermissibly infringe on defendant's right to present a defense." (People v.
Morrison (2004) 34 Cal.4th 698, 725.) The trial court did not deprive appellant of his
right to present a defense by excluding Bautista's hearsay statement concerning Bautista's
fear of Michoacan. Moreover, even if the exclusion of that evidence did constitute error,
it would be harmless under any standard of review. (Chapman v. California (1967) 386
U.S. 18, 24 [harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d
818, 836 [harmless error].) Although Bautista originally told officers that the
"Michoacán brothers did it [shot him]," he unequivocally identified appellant as the
shooter when officers showed him a photographic lineup. Bautista explained that he

                                              9
initially said the Michoacán brothers "did it," "because the fight was with them and . . .
Necio [appellant] always hangs out with them." When asked how certain he was that it
was Necio who shot him, Bautista responded that he "was in front of me [and] I'm not
going to forget that face." Jose Diaz, who was sitting right next to Bautista when he was
shot, identified appellant as the shooter. He had no doubt "[b]ecause [he] saw his face
right in front of [him]." Padillos knew the Michoacán brothers, and said they were not at
the scene during the shooting. Before trial, Padillos identified appellant as the shooter.
When officers arrived at the Tellez apartment, Juan and Jose cooperated with them. In
contrast, appellant was hiding under a bed, where he remained until officers found him,
which provided strong evidence of his consciousness of guilt.
                                              III
                                Substantial Evidence Claims
              Appellant claims there is not sufficient evidence to support his conviction
of an attempted criminal threat or the gang enhancement findings. The record belies his
claims.
              "When the sufficiency of the evidence to support a conviction is challenged
on appeal, we review the entire record in the light most favorable to the judgment to
determine whether it contains evidence 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.] 'Conflicts and even testimony which is subject to justifiable suspicion
do not justify the reversal of a judgment, for it is the exclusive province of the trial judge
or jury to determine the credibility of a witness and the truth or falsity of the facts upon
which a determination depends.' [Citation.] Unless it describes facts or events that are
physically impossible or inherently improbable, the testimony of a single witness is
sufficient to support a conviction. [Citation.]" (People v. Elliott (2012) 53 Cal.4th 535,
585.) The substantial evidence standard also applies to gang enhancement findings.
(People v. Villalobos (2006) 145 Cal.App.4th 310, 321-322.)




                                              10
                           Substantial Evidence - Attempted Threat
               Appellant argues that there is insufficient evidence to support his attempted
criminal threat conviction because his statements to the victim do not amount to a threat
to commit a crime. We disagree.
               Section 422 makes it a crime to "willfully threaten[] to commit a crime
which will result in death or great bodily injury to another person, with the specific intent
that the statement . . . is to be taken as a threat, even if there is no intent of actually
carrying it out, which, on its face and under the circumstances in which it is made, is so
unequivocal, unconditional, immediate, and specific as to convey to the person
threatened, a gravity of purpose and an immediate prospect of execution of the threat, and
thereby causes that person reasonably to be in sustained fear for his or her own safety or
for his or her immediate family's safety . . . ." (See also People v. Toledo (2001) 26
Cal.4th 221, 227-228.) "[I]f a defendant, again acting with the requisite intent, makes a
sufficient threat that is received and understood by the threatened person, but, for
whatever reason, the threat does not actually cause the threatened person to be in
sustained fear for his or her safety even though, under the circumstances, that person
reasonably could have been placed in such fear, the defendant properly may be found to
have committed the offense of attempted criminal threat." (Toledo, at p. 231; In re
Sylvester C. (2006) 137 Cal.App.4th 601, 607.)
               Appellant's attempted threat conviction is based on the statement he made
to Bautista during his fight with Jose Tellez: "Be very careful. When I was out of jail I
killed two people. I killed two people in El Cielito. You don't know who I am[.] I know
who you are. . . . I'm Canoga." Appellant argues that the "statement, 'Be very careful,'
hardly amounts to a threat to commit any crime." Citing In re Ricky T. (2001) 87
Cal.App.4th 1132, he further argues that "in examining the threats in the context and
under the surrounding circumstances, it is clear that the threat was not a real, genuine,
true threat." His reliance on Ricky T. is unavailing. Ricky T. addressed the sufficiency of
the evidence to support a completed threat, rather than an attempted threat. Moreover, it


                                                11
involved a high school student who became angry when a teacher accidentally hit him
with a door as he opened it. After cursing the teacher and saying he would get him and
"'kick [his] ass,'" the student was suspended from school. (Id. at p. 1137.) The teacher
waited until the next day to call the police. The appellate court reversed the finding that
the student made a terrorist threat, and concluded there was no immediacy to the threat or
any showing of sustained fear. (Id. at pp. 1137-1138.)
              In assessing whether a statement constitutes a threat, we must consider both
the words and "all of the surrounding circumstances." (People v. Martinez (1997) 53
Cal.App.4th 1212, 1218.) Here they support the inference that appellant's statement was
a threat to cause Bautista physical harm. Unlike the emotional outburst in response to an
accidental impact in Ricky T., appellant threatened Bautista in response to his aggression
against appellant's companion. Moreover, we reject appellant's suggestions that his
words were not threatening. He told Bautista to be careful, that appellant had killed two
people, that appellant knew who Bautista was, and that appellant was "Canoga." Canoga
was a local criminal street gang whose primary activities included murder and other
violent crimes. Appellant made the statements in Canoga territory. Substantial evidence
supports the attempted threat conviction.
                    Substantial Evidence - Gang Benefit Enhancement
              Appellant contends there is not sufficient evidence to support the gang
benefit enhancements for the attempted murder and attempted threat because "there was
no evidence presented that the shooting was gang related." We disagree.
              Officer Flores testified as the prosecution's gang expert. He had special
expertise concerning the Canoga Park Alabama Street gang. Canoga's territory includes
the shooting scene and the Tellez brothers' Variel apartment. Canoga's primary activities
include murder, robbery, assault, extortion, burglary, possession of firearms, vandalism,
and narcotics offenses.




                                             12
              Appellant is an admitted Canoga gang member who uses the moniker
Necio. Alejandro Flores is also a Canoga member. His moniker is "Sicko." When
presented with a hypothetical set of facts mirroring those of the charged crimes, Officer
Flores opined that such activities would have been specifically intended to promote and
assist criminal conduct by Canoga gang members.
              A gang enhancement requires proof of the existence of a criminal street
gang and that the offense was "committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members . . . ." (§ 186.22, subd. (b)(4).)
              "In order to prove the elements of the criminal street gang enhancement, the
prosecution may . . . present expert testimony on criminal street gangs." (People v.
Hernandez (2004) 33 Cal.4th 1040, 1047-1048.) An expert may give opinions regarding
the knowledge and intent of a hypothetical gang member. (People v. Gonzalez (2006) 38
Cal.4th 932, 946, fn. 3.) "[A] trier of fact may rely on expert testimony about gang
culture and habits to reach a finding on a gang allegation." (In re Frank S. (2006) 141
Cal.App.4th 1192, 1196.)
              In challenging the sufficiency of the evidence to support the gang benefit
enhancements, appellant argues there was no evidence that the shooting was gang related.
Appellant is wrong. The commission of a crime in concert with known gang members is
substantial evidence which supports the inference that the defendant acted with the
specific intent to promote, further or assist gang members in the commission of the crime.
(People v. Villalobos, supra, 145 Cal.App.4th at p. 322.) Appellant committed the
attempted murder of Bautista with the assistance of Sicko, a fellow Canoga gang
member. While attempting to threaten Bautista, appellant stressed his membership in
Canoga. In addition, gang expert witness Flores opined that appellant committed the
crimes for the benefit of the Canoga gang. (People v. Gardeley (1996) 14 Cal.4th 605,
619 [expert testimony held sufficient to support finding that defendants committed crimes


                                             13
with specific intent to promote criminal conduct by street gang].) Substantial evidence
supports the gang benefit enhancements.
                                     DISPOSITION
             The judgment is affirmed.
             NOT TO BE PUBLISHED.



                                          PERREN, J.


We concur:



             GILBERT, P. J.



             YEGAN, J.




                                           14
                                  Michael Jesic, Judge
                         Superior Court County of Los Angeles
                           ______________________________


             Marilee Marshall, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney
General, for Plaintiff and Respondent.




                                          15
