Filed 9/12/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION ONE


 THE PEOPLE,                             B292031

         Plaintiff and Respondent,       (Los Angeles County
                                         Super. Ct. No. NA106460)
         v.

 AXEL EFREN CACERES,

         Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, Laura L. Laesecke, Judge. Affirmed.
      Melissa J. Kim, under appointment by the Court of Appeal,
for Defendant and Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Susan Sullivan Pithey and
Mary Sanchez, Deputy Attorneys General, for Plaintiff and
Respondent.

                       ——————————
       Axel Caceres appeals from the judgment after his
conviction for criminal threats against E.S.J., the mother of his
daughter. Caceres contends his crime was not one “involving
domestic violence” as required under Penal Code1 section 136.2,
subdivision (i)(1), and thus the trial court erred in issuing a
protective order forbidding Caceres from contacting or
approaching E.S.J. He further argues that, under
People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the
trial court violated his right to due process by imposing court
assessments and a restitution fine without first ascertaining his
ability to pay.
       We conclude that Caceres’s threats against his child’s
mother constitute domestic violence under Family Code
section 6211, a statutory section expressly cross-referenced in
section 136.2, subdivision (i)(1), and therefore the trial court
properly issued the protective order. We further conclude that
the due process analysis in Dueñas does not support its broad
holding, and it is distinguishable on its facts from this case.
Accordingly, we affirm the judgment.

                  FACTUAL BACKGROUND
      At the preliminary hearing, E.S.J. testified that she had
dated Caceres for about seven years and they had a daughter
together. One night around midnight, Caceres arrived at E.S.J.’s
apartment and knocked at the door, yelling that if she did not
open it he would kill her. E.S.J. told him she would call the
police if he did not go away, and he said, “ ‘Go ahead and call
them. By the time they get here, I will have chopped you up.’ ”

      1Further unspecified statutory citations are to the
Penal Code.




                                   2
After about 10 minutes of yelling and knocking, Caceres left. As
he was leaving, E.S.J. saw he was holding “the point of a knife” in
his hand.

               PROCEDURAL BACKGROUND
        An information charged Caceres with one count of criminal
threats against E.S.J. (§ 422, subd. (a)), and one count of
violating a domestic violence protective order with a prior
conviction for violating a court order (§ 166, subd. (c)(4)). The
information alleged that Caceres used a knife in committing the
charged offenses (§ 12022, subd. (b)(1)).
        Caceres pleaded no contest to the criminal threats charge,
and the trial court found him guilty. Pursuant to plea
negotiations, the trial court dismissed the count for violating a
protective order.
        For the criminal threats conviction, the trial court denied
probation and sentenced Caceres to 16 months in state prison
with 924 days of custody and conduct credits. The trial court
imposed a $40 court operations assessment (§ 1465.8,
subd. (a)(1)), a $30 criminal conviction assessment (Gov. Code,
§ 70373),2 and a $300 restitution fine (§ 1202.4, subd. (b)). The
trial court imposed and stayed a $300 parole revocation fine.
Defendant was served in open court with a domestic violence
criminal protective order pursuant to section 136.2, subdivision
(i)(1), barring him from contacting or coming within 100 yards of
E.S.J.
        Caceres timely appealed.

      2  The assessment under Government Code section 70373 is
also referred to as a “court facilities assessment.” (See, e.g.,
Dueñas, supra, 30 Cal.App.5th at p. 1162.)




                                    3
                          DISCUSSION

A.    The Trial Court Properly Issued The Protective
      Order
       Caceres argues that the crime for which he was convicted,
criminal threats, was not a “crime involving domestic violence,”
as required to subject him to a protective order under
section 136.2, subdivision (i)(1). Caceres is incorrect.
       As relevant here, section 136.2, subdivision (i)(1) provides
that “[i]n all cases in which a criminal defendant has been
convicted of a crime involving domestic violence as defined in
[Penal Code] Section 13700 or in Section 6211 of the Family
Code,” the trial court, “at the time of sentencing, shall consider
issuing an order restraining the defendant from any contact with
a victim of the crime.” Thus, section 136.2, subdivision (i)(1)
applies to crimes involving domestic violence as defined under
either section 13700 or Family Code section 6211.
       Section 13700 defines “ ‘[d]omestic violence’ ” as “abuse
committed” against specified persons, including a “person with
whom the suspect has had a child or is having or has had a
dating . . . relationship.” (§ 13700, subd. (b).) “ ‘Abuse’ ” is
defined as, among other things, “placing another person in
reasonable apprehension of imminent serious bodily injury to
himself or herself, or another.” (Id., subd. (a).)
       Family Code section 6211 similarly defines “ ‘[d]omestic
violence’ ” as “abuse perpetrated” against specified persons,
including “[a] person with whom the [defendant] is having or has
had a dating . . . relationship” or “with whom the [defendant] has
had a child.” (Fam. Code, § 6211, subds. (c), (d).)
       “[A]buse” for purposes of Family Code section 6211 is
defined in Family Code section 6203. Like section 13700, Family



                                    4
Code section 6203 includes in the definition of abuse “[t]o place a
person in reasonable apprehension of imminent serious bodily
injury to that person or to another.” (Fam. Code, § 6203,
subd. (a)(3).) Family Code section 6203 also defines as “abuse”
“any behavior that has been or could be enjoined pursuant to
[Family Code] section 6320.” (Fam. Code, § 6203, subd. (a)(4).)
       Behavior that may be enjoined under Family Code
section 6320 includes, among other things, “molesting, attacking,
striking, stalking, threatening, sexually assaulting,
battering, . . . harassing, . . . or disturbing the peace of the other
party.” (Fam. Code, § 6320, subd. (a), italics added.)
       In sum, because threats are among the acts subject to
injunction under Family Code section 6320, subdivision (a), they
constitute “abuse” under Family Code section 6203, subdivision
(a)(4), and constitute “domestic violence” under Family Code
section 6211 when perpetrated against a person with whom the
defendant has a child or has had a dating relationship.
       Caceres does not dispute that he was convicted of making
criminal threats under section 4223, and that the person he



      3  Section 422, subdivision (a) provides, in relevant part,
“Any person who willfully threatens 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, shall be



                                      5
threatened was someone he had dated and with whom he had a
child. Thus, under Family Code section 6211, he committed an
act of domestic violence, subjecting him to a protective order
under section 136.2, subdivision (i)(1).
       Caceres argues that his crime was not an act of domestic
violence under section 13700, because that section applies to acts
causing apprehension of imminent injury, whereas section 422
has no imminence element. That argument is beside the point.
Even if Caceres’s crime did not meet the definition of domestic
violence under section 13700, a question we do not decide, it met
the broader definition under Family Code section 6211. (See
People v. Ogle (2010) 185 Cal.App.4th 1138, 1144 [“Family Code
section 6211 . . . defines domestic violence more broadly” than
section 13700].) The trial court did not err in issuing the
protective order.

B.    The Trial Court Properly Imposed The Assessments
      And Restitution Fine
      Caceres contends the trial court violated his due process
rights by imposing the restitution fine and court operations and
criminal conviction assessments without first determining that
he had the ability to pay those costs, citing Dueñas, supra,
30 Cal.App.5th 1157.
      The Attorney General argues Caceres forfeited his due
process challenge by not raising it in the trial court.4 On the


punished by imprisonment in the county jail not to exceed one
year, or by imprisonment in the state prison.”
      4 Courts are divided as to whether the constitutional
principles announced in Dueñas are new and reasonably
unforeseeable such that appellants sentenced prior to Dueñas can



                                   6
merits, the Attorney General disagrees with Dueñas’s application
of due process, arguing that restitution fines instead should be
evaluated under the excessive fines clause of the Eighth
Amendment to the United States Constitution. The
Attorney General contends that under that analysis, ability to
pay is a factor, not a requirement, and that Caceres’s particular
fine is not grossly disproportionate to his offense. The
Attorney General agrees with Caceres (and, presumably, Dueñas)
that the court assessment fees, which are nonpunitive and which
the Attorney General contends relate to defendants’ access to the
justice system, implicate due process and should not be imposed
on defendants who lack the ability to pay them.
       For the reasons we discuss below, we conclude that the due
process analysis in Dueñas does not support its broad holding,
and the extreme facts of Dueñas are not present on the record
before us. Given these conclusions, we need not address whether
Caceres has forfeited his due process challenges to the fine and
assessments at issue here. As for the Attorney General’s
contentions regarding applicability of the Eighth Amendment,
Caceres did not raise an Eighth Amendment challenge in his
opening brief and we therefore decline to address that question.




invoke those principles despite not having raised them in the
trial court. (Compare, e.g., People v. Castellano (2019)
33 Cal.App.5th 485, 489 [finding no forfeiture, reasoning Dueñas
announced a new “constitutional principle that could not
reasonably have been anticipated at the time of trial”] with
People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154–1155
[finding forfeiture, reasoning that “Dueñas was foreseeable” and
“applied law that was old, not new”].)




                                   7
(See People v. Spector (2011) 194 Cal.App.4th 1335, 1372, fn. 12
[declining to address issue not raised properly in opening brief].)

      1.    Dueñas
       Dueñas, an unemployed, homeless mother with cerebral
palsy, had her driver’s license suspended because “[s]he could not
afford to pay the $1,088 she was assessed for” three juvenile
citations.5 (Dueñas, supra, 30 Cal.App.5th at pp. 1160–1161.)
Thereafter she received four misdemeanor convictions stemming
from driving with a suspended license, serving jail time for each
and accruing court fees she could not afford to pay. (Id. at p.
1161.)
       Dueñas pleaded no contest to a fifth charge arising
from driving with a suspended license. (Dueñas, supra,
30 Cal.App.5th at p. 1161.) When Dueñas was unable to obtain a
valid license by the date of sentencing, the trial court “suspended
imposition of sentence and placed Dueñas on 36 months’
summary probation on the condition that she serve 30 days in
county jail and pay $300, plus a penalty and assessment, or that
she serve nine additional days in custody in lieu of paying the
$300 fine.” (Id. at p. 1162.) The trial court also imposed a
$30 court facilities assessment under Government Code
section 70373, a $40 court operations assessment under



      5  The Dueñas court noted that “the Legislature
recently amended several statutes to prohibit the courts and
the Department of Motor Vehicles from suspending a
driver’s license because of an unpaid traffic citation.” (Dueñas,
supra, 30 Cal.App.5th at p. 1164, fn 1, citing Stats. 2017, ch. 17,
§§ 51–54, eff. June 27, 2017.)




                                     8
section 1465.8, and a $150 restitution fine under section 1202.4.
(Ibid.)
       At Dueñas’s request, the trial court held a hearing to
determine her ability to pay the two court assessments and
restitution fine imposed on her.6 (Dueñas, supra, 30 Cal.App.5th
at pp. 1162–1163.) Dueñas presented an uncontested declaration
establishing her indigent financial circumstances. (Id. at p.
1163.) The trial court ruled that the $30 and $40 assessments
were mandatory regardless of Dueñas’s ability to pay, and that
Dueñas had not shown the “ ‘compelling and extraordinary
reasons’ ” required to waive the restitution fine. (Ibid.)
       The Court of Appeal reversed, holding that due process
prohibits a trial court from imposing court facilities and court
operations assessments, and requires the trial court to stay
execution of any restitution fines, until the trial court ascertains
the defendant has the ability to pay those assessments and
fines.7 (Dueñas, supra, 30 Cal.App.5th at p. 1164.)
       Key to the court’s holding was its concern for “the cascading
consequences of imposing fines and assessments that a defendant
cannot pay,” which “[t]he record in this matter illustrates.”
(Dueñas, supra, 30 Cal.App.5th at p. 1163.) The court noted that


      6  Dueñas also requested that the trial court determine her
ability to pay attorney fees assessed against her in an earlier
proceeding. (Dueñas, supra, 30 Cal.App.5th at p. 1162.) The trial
court “determined that [Dueñas] lacked the ability to pay the
previously ordered attorney fees, and waived them on the basis of
her indigence.” (Id. at p. 1163.)
      7 The Dueñas court addressed the validity only of the two
court assessments and $150 restitution fine imposed on Dueñas,
and did not address the other conditions of her probation.




                                    9
Dueñas’s case “ ‘doesn’t stem from one case for which she’s not
capable of paying the fines and fees,’ but from a series of criminal
proceedings driven by, and contributing to, Dueñas’s poverty.
Unable to pay the fees for citations she received when she was a
teenager, Dueñas lost her driver’s license. Like many who are
‘faced with the need to navigate the world and no feasible,
affordable, and legal option for doing so’ [citation], she broke the
law and continued to drive. As a result, Dueñas now has four
misdemeanor convictions for driving without a valid license.
These, in turn, have occasioned new fines, fees, and assessments
that she is unable to pay. . . . [T]he repeat criminal proceedings
have caused her financial obligations to ‘snowball.’ ” (Id. at p.
1164.) The court referenced “the counterproductive nature of this
system and its tendency to enmesh indigent defendants in a cycle
of repeated violations and escalating debt.” (Id. at p. 1164, fn. 1.)
       In support of its due process argument, the Dueñas court
analogized the court assessments imposed on Dueñas to court
fees in other contexts that indigent individuals were not required
to pay. The Dueñas court referenced statutes allowing for waiver
of court fees and costs for indigent civil litigants, noting that
similar relief was not available in the criminal context. (Dueñas,
supra, 30 Cal.App.5th at pp. 1165–1166.) The court cited Griffin
v. People of the State of Illinois (1956) 351 U.S. 12 (Griffin) and
Mayer v. City of Chicago (1971) 404 U.S. 189 (Mayer), cases
holding that requiring indigent criminal defendants to pay for
trial transcripts in order to prosecute their appeals was
unconstitutional. (Dueñas, at pp. 1166, 1168; see Griffin,
at pp. 13–14, 19–20; Mayer, at pp. 196–197.)
       The Dueñas court further opined that imposing
assessments on defendants who were unable to pay them violated




                                    10
the defendants’ constitutional rights by inflicting “additional
punishment” based solely on their poverty. (Dueñas, supra,
30 Cal.App.5th at p. 1168.) The court cited In re Antazo (1970)
3 Cal.3d 100 (Antazo) and Bearden v. Georgia (1983) 461 U.S. 660
(Bearden), which prohibited jailing or automatically revoking the
probation of criminal defendants who were unable to pay fines
or penalty assessments. (Dueñas, at pp. 1166–1167; Antazo,
at pp. 103–104; Bearden, at pp. 661–662.)
       The Dueñas court acknowledged that failure to pay court
assessments subjects defendants to civil judgment and
collections, but not to further imprisonment. (Dueñas, supra,
30 Cal.App.5th at p. 1168.) The court nonetheless held that the
consequences of “[c]riminal justice debt and associated collection
practices”—including damage to credit, inability to meet other
financial obligations, and restriction of employment
opportunities—“in effect transform a funding mechanism for the
courts into additional punishment for a criminal conviction for
those unable to pay.” (Ibid.)
       As for the restitution fine, the Dueñas court opined that
imposing fines on those who cannot pay them “is neither
procedurally fair nor reasonably related to any proper legislative
goal. Imposing a restitution fine on ‘someone who through no
fault of his own is unable to make restitution will not make
restitution suddenly forthcoming’ [citation], and the state has no
‘legitimate interest in building inescapable debt traps’ for
indigent residents.” (Dueñas, supra, 30 Cal.App.5th at p. 1171,
fn. 8.)8 The court cautioned that requiring payment from

      8The language we quote here is from a footnote in Dueñas
ostensibly analyzing whether restitution fines imposed on
indigent defendants “also violate[ ] the bans on excessive fines in



                                   11
indigent defendants “ ‘may have the perverse effect of inducing
the probationer to use illegal means to acquire funds to pay in
order to avoid’ the additional negative consequences.” (Id. at p.
1167.)9
      The Dueñas court also noted that defendants on probation
who comply with all conditions of that probation, including
payment of restitution fines, are entitled by statute to have their
charges dismissed, whereas defendants who cannot pay them


the United States and California Constitutions.” (Dueñas, supra,
30 Cal.App.5th at p. 1171, fn. 8.) The Dueñas court made clear
however, that its excessive fines reasoning applied equally to its
due process analysis. The Dueñas court stated that excessive
fines analysis was “sufficiently similar” to due process analysis
“that ‘[i]t makes no difference whether we examine the issue as
an excessive fine or a violation of due process.’ ” (Ibid.) In fact,
the constitutional test the Dueñas court invoked for “the
excessive fine context,” namely that a penalty be “ ‘procedurally
fair and reasonably related to a proper legislative goal’ ” (ibid.),
was quoted from Hale v. Morgan (1978) 22 Cal.3d 388, 398
(Hale), a case analyzing the constitutional validity of statutory
penalties under due process. (See Hale, at p. 398.) We do not
address whether Dueñas was correct in equating due process
analysis with excessive fines analysis because Caceres did not
raise an excessive fines challenge in his opening brief.
      9  In the section of the Dueñas opinion discussing the court
assessments, the court similarly argued that “[i]mposing
unpayable fines on indigent defendants is not only unfair, it
serves no rational purpose, fails to further the legislative intent,
and may be counterproductive.” (Dueñas, supra, 30 Cal.App.5th
at p. 1167.) Although the quoted language is directed at “fines,”
given its placement in the opinion we presume the Dueñas court
intended its rational basis analysis to apply to court assessments
as well.




                                    12
“[a]t best . . . can try to persuade a trial court to exercise its
discretion to grant them relief.” (Dueñas, supra, 30 Cal.App.5th
at pp. 1170–1171, citing § 1203.4, subd. (a)(1).) The Dueñas court
deemed this disparity violative of due process. (Id. at p. 1171.)10

      2.    Analysis
       Dueñas announced a broad constitutional rule, one that has
the potential to impose a new procedural requirement on our
trial courts in every or nearly every criminal proceeding. It did so
based on the peculiar facts of that case, facts that several
appellate courts have described as “extreme.” (People v. Santos
(Aug. 15, 2019, H045518) __ Cal.App.5th __ [2019 Cal.App.Lexis
759, p. *1] (Santos); People v. Kopp (2019) 38 Cal.App.5th 47, 94
(Kopp)). Although we do not reach whether Dueñas was correctly
decided as to those extreme facts, in our view, the due process
analysis in Dueñas does not justify extending its holding beyond
those facts. (See Kopp, at p. 94 [“Although we do not reject
Dueñas outright, we urge caution in following that case and
announcing a significant constitutional rule without regard to the
extreme facts Dueñas presented”].)
       The following observations illustrate our concern with the
due process analysis in Dueñas:
       First, Dueñas drew what we regard as an inapt analogy
between court assessments imposed following a criminal
conviction and fees that, if imposed on indigent litigants or
criminal defendants, impede their access to the courts in the first
place. The Legislature and courts rightly are concerned when

      10 This section of the Dueñas opinion is inapplicable here,
where the trial court denied Caceres probation, and we do not
address it further.




                                   13
filing fees and other court costs prevent indigent individuals from
having their day in court. Fees imposed after a case is completed,
and judgment entered, however, do not deprive defendants of
access to justice.11 (See Santos, supra, __ Cal.App.5th __
[2019 Cal.App.Lexis 759, p. *22] (Elia, J., dis. opn.) [“a convicted
person’s inability to pay a court operations assessment or a court
facilities assessment [does not] in any way impact that person’s
ability to access the courts”]; People v. Gutierrez (2019)
35 Cal.App.5th 1027, 1039 (Gutierrez) (Benke, J., conc. & dis.
opn.) [“the imposition of the two assessments and one restitution
fine on the defendant in Dueñas was not an issue of access to the
courts or our system of justice”].)
       Second, Dueñas equated the civil judgment and
consequences thereof faced by defendants who do not pay their
court assessments as “additional punishment” to which only
indigent defendants are subject. (Dueñas, supra, 30 Cal.App.5th
at p. 1168.) Although civil judgments potentially can have
significant negative consequences, not only for indigent
individuals but also for any civil defendant, Dueñas cites no
authority for the proposition that those consequences constitute
“punishment” rising to the level of a due process violation. We
note that the cases upon which Dueñas relied, Antazo and
Bearden, involved defendants who, because of their poverty, were
exposed to additional criminal penalties. (See Santos, supra,
___ Cal.App.5th ___ [2019 Cal.App.Lexis 759, p. *24] (Elia, J.,
dis. opn.) [noting that unlike the laws challenged in Antazo and

      11 We acknowledge that the Attorney General in his
appellate briefing took the opposite position and agreed with
Dueñas that nonpunitive court assessments implicate due process
when imposed on those who cannot pay them.




                                   14
Bearden, the statutes requiring payment of court assessments
“deprive no one of their fundamental right to liberty based on
their indigence”]; see also Gutierrez, supra, 35 Cal.App.5th
at p. 1039 (Benke, J., conc. & dis. opn.) [fines and fees imposed in
Dueñas did not “satisf[y] the traditional due process definition of
a taking of life, liberty or property”].) For the same reason,
Dueñas fails to persuade us that imposition of a $300 restitution
fine, nonpayment of which subjects a defendant only to civil
remedies (see § 1202.43, subd. (b)), constitutes additional
punishment when imposed on those who cannot pay it, as
Caceres appears to contend.
       Third, we disagree with Dueñas that imposing fees or fines
on defendants who cannot pay “is neither procedurally fair nor
reasonably related to any proper legislative goal.” (Dueñas,
supra, 30 Cal.App.5th at p. 1171, fn. 8). Raising funds for victim
restitution and court operations and facilities unquestionably are
proper legislative goals, and there is no indication that the
postconviction assessment and fines statutes do not serve those
goals. Dueñas objects only to the rationality of seeking those
funds from indigent defendants.
       In determining whether a statute is “ ‘ “ ‘reasonably related
to a proper legislative goal,’ ” ’ ” however, “ ‘[t]he wisdom of the
legislation . . . is not at issue, and neither the availability of
less drastic remedial alternatives nor the legislative failure to
solve all related ills at once will invalidate a statute.’ ”
(People v. Munoz (2019) 31 Cal.App.5th 143, 160.) By holding
that trial courts must tailor the imposition of costs to each
defendant’s ability to pay, Dueñas in effect proposes a “ ‘less
drastic remedial alternative’ ” to the current statutory scheme,
which is more than what due process requires. Given Dueñas’s




                                    15
unique facts, we eschew a conclusion that the entire system of
imposing postconviction fees and fines is irrational and
contravenes due process.
       In light of our concerns with the due process analysis in
Dueñas, we decline to apply its broad holding requiring trial
courts in all cases to determine a defendant’s ability to pay before
imposing court assessments or restitution fines.
       We need not decide whether Dueñas was correctly decided
as applied to its facts, because it is evident that those facts, as
Dueñas characterizes them, are not present here. More
specifically, in the Dueñas court’s view, Dueñas lost her driver’s
license because she was too poor to pay her juvenile citations,
then continued to offend because the aggregating criminal
conviction assessments and fines prevented her from recovering
her license. The Dueñas court described this as “cascading
consequences” stemming from “a series of criminal proceedings
driven by, and contributing to, [a defendant’s] poverty.” (Dueñas,
supra, 30 Cal.App.5th at pp. 1163–1164.)
       In contrast, Caceres’s offense, criminal threats, on its face
is not a crime either “driven by” poverty or likely to “contribut[e]
to” that poverty such that an offender is trapped in a “cycle of
repeated violations and escalating debt.” (Dueñas, supra, 30
Cal.App.5th at p. 1164 & fn. 1.) A person may avoid making
criminal threats regardless of his or her financial circumstances,
and the imposition of $370 in fees and fines will not impede
Caceres’s ability to avoid making criminal threats in the future.
       As set forth above, to the extent Caceres cannot pay the
imposed costs and is subject to a civil judgment, we are not
persuaded that such a consequence violates due process. In sum,
the trial court did not violate Caceres’s due process rights by




                                    16
imposing the assessments and restitution fine without first
ascertaining his ability to pay them.

                          DISPOSITION
     The judgment is affirmed.
     CERTIFIED FOR PUBLICATION.




                                         BENDIX, J.


We concur:



             ROTHSCHILD, P. J.



             CHANEY, J.




                                  17
