Filed 11/15/22 P. v. Taporco CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT
THE PEOPLE,

Plaintiff and Respondent,

v. TINYAMOR TAPORCO,
Defendant and Appellant. F081961 (Super. Ct. No. BF176685A)



### OPINION

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.
Jin H. Kim , under appointment by the Court of Appeal, for De fendant and Appellant.
Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J.
Valle , Deputy Attorneys General, for Plaintiff and Respondent.

- ooOoo

-2

. INTRODUCTION Defendant Tinyamor Taporco assaulted H.R. , a private citizen attempting to arrest
defendant , using a stabbing instrument and after leaving a restaurant where he had threatened employees and stolen unopened beer. A jury convicted defendant of assault with a deadly weapon. The trial court denied defendant’s motion to strike his prior
convictions and sentenced him to a term of 3 5 years to life in prison.
Defendant argues that the trial court abused its discretion in admitting evidence of a prior incident where defendant also threatened employees of the restaurant and destroyed refreshment bottles because the evidence was not relevant to the lawfulness of
H.R. ’s cit izen’s arrest and because the evidence was unduly prejudicial. Defendant also argues that the trial court abused its discretion in denying his motion to strike his prior
conviction s

. We affirm

. PROCEDURAL BACKGROUND The District Attorney of Kern County f iled an amended information on
October 16, 20 19 , charging defendant with assault with a deadly weapon 1 ( Penal Code, 2 § 245 , subd. (a) (1) ) , three prior “strike” conviction s within the meaning of the “Three Strikes” law (currently codified at §§ 667, subds

. (b)

– (i), 1170.12, subds. (a)

– (d)) , three prior serious felony conviction enhancement s (§ 667, subd. (a)) , and four prior prison terms (§ 667.5, subd. (b))

. 3 Defendant pled not guilty to the charges and denied all allegations.

1 The amended information alleged that the deadly weapon was a knife but was further amended by interlineation on September 14, 2020, to replace the word “knife” with the words “stabbing instrument.”
2 Undesignated statutory references are to the Penal Code. 3 The amended information alleged that defendant had been convicted of the following serious prior felony convictions: carjacking in 2003 (§ 215 , subd. (a) ) ; criminal thre ats in 2005 (§ 422) ; and second degree robbery in 2013 (§ 212.5, subd. (c)). On September 1, 2020, the trial court dismissed the strike and serious felony conviction allegations (§ 667, subds. (a), (e)) relating to the 2005 conviction upon motion of the p rosecutor as they did not belong to defendant3

.

Trial of defendant commenced on September 2, 2020

. 4 The jury convicted
defendant of assault with a deadly weapon as charged in count 1 after a nine

- day trial on September 15, 2020

. After defendant waived his right to a jury trial regarding his prior

con victions, the trial court found the allegations to be true on September 22, 2020.
On October 2 1, 2020, the trial court denied defendant’s motion to dismiss his prior
strike and serious felony convictions and sentenced h im to a term of 25 years to life in
p rison (§ 667, subd. (e) (2)(A)(ii ) ) , plus 10 year s (§ 667, subd. (a)), for a total term of
3 5 years to life. The trial court found that defendant did not have the ability to pay any fines and fees and did not impose them but did order victim restitution in an amount to be determined by probation

. ( Former § 120 2. 4, subd. (f))

. Defendant timely appealed on October 28, 2020. FACTS
R

. K. i s the daughter of the owner of a restaurant in Bakersfield ( the restaurant)

. She sometimes helped out at the restaurant. R.K

. ’s father and a restaurant employee contacted her on April 12, 2019, and told her that defendant was at the restaurant and the employees were afraid. 5 R.K. ’s father asked R.K. to respond to the re staura nt to see what was happening

. R.K. called H.R. and told him that someone was at the restaurant threatening and scaring the employees and they had asked the individual to leave several

and dismissed the four prior prison term allegations in light of Senate Bill No. 136 (2019

– 2020 Reg Sess.) that narrowed eligibility for the one

- year prior prison term enhancement to those who have served prior prison sentences for sexually violent offenses. (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1.) 4 The trial court found defendant incompetent to stand trial upon motion of defense counsel pursuant to section 1368 on December 5, 2019, and committed defendant to t he State Department of State Hospitals on December 27, 2019. T he trial court found defendant competent to stand trial and resumed criminal proceedings on March 17, 2020

. 5 The trial court admonished the jury to consider R.K. ’s tes timony of what she was told only to explain her conduct.4

.

times. 6 R.K. told H.R. that the individual was the same individual wh o had been there
before. R.K. advised H.R. that they called the police and asked H.R. to respond to the

restaurant. R.K. went to the restaurant.
D efendant was present and angry w hen R.K. arrived at the restaurant. R.K. entered through the back door. When she first saw defendant, he was carrying a cup in

one hand and hi s other hand was in his pocket. D efendant thr e w the cup and r emove d a large , unopened bottle of beer from the refrigerator located in the bar area. Def endant did not pay for the beer nor did he approach any register located in the restaurant where he could have paid for the beer. H e was very angry and threaten ed employees as he left.
R.K. saw defendant walk toward the door as H.R. approached the restaur ant from
the left

. Defendant had the beer in his left hand , and his right hand was moving in his pocket. R.K. did not know what defendant may have had in his right hand and did not

see him remove a knife from his pocket

. When defendant went out the door , R.K. could
see the left side of defendant’s body but could only see his right hand when he raised it in
front of him. R.K. could not see what defendant may have been holding in his right hand , and s he could not see his right side completely

. As R.K. watched from inside, she saw defendant argue with H.R. and then make a

movement with his left hand as if to hit H.R. with the be er bottle

. Defendant threw the
bottle at H.R. and ran off. H.R. stepped back when defendant threw the bottle. When
defendant tried to hit H.R. , R.K. saw some one swing a stick at defendant

. She only saw defendant try to hit H.R. one time.
H.R . owned and managed multiple businesses and properties, was licensed as a private investigator, and had previously worked as a New Hampshire State Trooper. The restaurant operated on one of H.R. ’s properties

. On the day of the instant offense , R.K.

6 The trial court admonished the jury to consider R.K.’s statements to H.R. only to explain H.R.’s state of mind and why he took certain actions.5

.

called H.R. to advise him that an individual in the restaurant was causing havoc and
trouble and threatening the employees “again

. ” 7 H.R. knew R.K. was referring to defendant based upon his knowledge of earlier incidents at the restaurant. During an earlier incident i n February or March of 2019 (the first incident) , H.R.
received a call from R.K. as he traveled from Los Angeles. R.K. told H.R. that an individual was in the restaurant threatening to kill her father, “ busting up the place, ” and breaking and throwing win e bottles

. 8 During the call, H.R. heard someone say, “I a m going to kill you. Come on outdoors. I am going to get you. Come on. I a m going to kill you.” H.R. visited the restaurant the following day and saw busted glass bottles on
the bar and tables and red wine splattered on the walls, floor, and tablecloths. An
individual at the restaurant also showed H.R. a video of what happened the day before. 9 The video showed defendant in the restaurant screaming threats and racial slurs and smashing bottles. Between the fall of 2018 and spring of 2019, H.R. contacted defendant on the property five or six times because h e creat ed disturbances. 10 H.R. asked defendant to
leave the property because no loitering, trespassing, or panhandling was p ermitted.
Defendant did not threaten H.R. during these encounters. On the prior occasions when

7 The trial court admonished the jury that R.K.’s statements to H.R. were not to be used for the truth of the matter asserted b ut to explain H.R.’s state of mind and subsequent conduct. 8 At defense counsel’s request, the trial court again instructed the jury that this testimony was for the limite d purpose of explaining H.R.’s state of mind during the April 12, 2019 incident based upon th e first incident. 9 The trial court admonished the jury that evidence as to what anyone told H.R. was not being offered for its truth but could only be used for t he limited purpose of explaining H.R.’s state of mind

. 10 The trial court admonished the jury that evidence of these other incidents was onl y offered to explain H.R.’s state of mind and could not be used to prove the instant offense.6

.

H.R. asked defendant to leave the premises, H.R. did not have a weapon and the interactions were peaceful

. When R.K. called to say that “ he ” was back, H.R. kne w R.K. was referring to
defendant

. H.R. heard defendant threaten to kill R.K. ’s father during the first incident
and viewed a video of the incident. H.R. also knew that defendant had thrown bottles in the restaurant and had threatened to kill. Based upo n his prior experience with defendant,
H.R. believed that defendant was extremely dangerous and, because he had not been arrested previously due to slow police response, H.R. intended to detain defendant using handcuffs until police arrived. H.R. called o ne of his workers, S

. H., and asked him to
come to the restaurant and assist.
H.R. drove to the restaurant, parked in front of an adjacent business, and got out of
his truck. He walked toward the restaurant and saw defendant standing and turning in the doorway as if to leave. When defendant left the restaurant, he was carrying a large , glass beer bottle approximately 12 to 14 inches tall in one hand and a shiny object in the other. Defendant swung open the door with his right hand and walked through. H.R. instructed defendant to get down on the ground and drop whatever he had in his hands , then advised
him that H.R. intended to arrest and handcuff defendant. H.R. did not have a weapon. When H.R. arrived and saw defendant bring the beer outside the restaurant, he immediately thought that defendant had stolen the beer, although no one had told him

so. 11 This was one of the reasons that H.R. attempted to arrest defendant. Defendant responded by stepping forward and us ing his right hand to swing at
H.R. , which caused H.R. to tip his head and fall backwards. H.R. backed into S .H. who

was standing behind him. S .H. swung at defendant using a stick and, at the same time,
defendant threw the beer bottle hard and fast at H.R. ’s head while looking straight at him.

11 The trial court adm onished the jury to consider H.R.’s belief only with reference to H.R.’s state of mind and his conduct based upon his state of mind.7

.

The beer bottle came close enough to H.R. ’s head that he could hear the sound o f it passing before it hit the ground and broke. H.R. was within five feet of defendant when this happened. H.R. had reached for defendant just prior and was approximately
14 inches from defendant’s arm when defendant swung at him. When defendant swung
his hand at H.R. , he used a round

- house motion and his hand moved in sideways toward
H.R. ’s neck and face. Defendant’s hand was closed , facing downwards , and contained
somethin g shiny that was chrome or silver that resembled a table utensil such as a knife, fork, or spoon. The weapon came within six inches of H.R. ’s head , and he would have
been struck if he had not moved backwards. While the bottle was in the air, defendant ran from the parking lot. H.R. chased defendant but stopped to relay defendant’s description to responding officers.
S.H. worked for H.R. as a shop supervisor and welder at the time of the instant
offense. He also assisted in performing maintenance at the p laza where the restaurant was located. On the day of the instant offense, S .H received a call from H.R. who advised him to respond to the restaurant because an individual who had previously
caused the restaurant problems was causing problems again

. 12 S. H

. responded right away and saw H.R. approaching the front door of the restaurant. Just as H.R. reached for the door, S.H. saw defendant come out of the restaurant with the beer bottle in one hand
and a knife or screwdriver in the other. S .H. believed def endant was holding a knife , which he told the police later that day. H.R. put up a hand and instructed defendant to stop and drop the items. Defendant then lunged at H.R. with the knife as if to stab H.R.
and said , “ ‘ F uck you

. ’ ” The knife would have hit H.R. , but H.R. backed up and fell against S .H. who then swung at defendant to defend H.R. and himself. S .H. believed that defendant was going to hit H.R. and himself. S .H. used a wooden stick from a

12 The trial court instructed the jury to limit use of H.R.’s statements to S.H. to explain what S.H. did in response to th e statements.8

.

“ windshield cleaning brush” wh en he swung at defendant , but S.H. did not hit defendant

. As S .H. sw un g the stick, defendant threw the beer bottle at them , which smashed against
the storefront and barely miss ed H.R. ’s head

. S .H. testified that the knife had a black handle with a four

- to six

- inch shiny , s i lver
blade. On cross

- examination, S .H. agreed that he had previously testified that he was not certain if the weapon was a knife or a screwdriver and that all he saw was “a shi ny thing.” When defendant tried to stab H.R. , the blade was “ [ p ] retty close” to H.R. ’s arm
and chest area. S .H. tried to chase defendant , but defendant got away over a brick wall.
S .H. was familiar with defendant from five or six prior incidents when defendant loitered at the plaza and was removed from the property. He also viewed the video of the first
incident of defendant causing problem s at the res taurant

. On cross

- examination, S .H.
admitted that he had been previously convicted of two violations of Vehicle Code
section 10851, subdivision (a) in 2010 and a violation of section 460, subdivision (b) in
2016. DISCUSSION
I. The trial court did not abuse its discretion in admitting evidence of defendant’s pr ior bad conduct at the restaurant to establish the lawfulness of H.R. ’s citizen ’s arrest.
A. Background
1. Hearing Pursuant to Evidence Code Section 402 On September 9, 2020, d efendant orally moved for a hearing relating to t estimony proffered by the prosecutor from H.R. as to hearsay statements relayed to H.R. on the day of the incident and prior incidents involving defendant that related to H.R. ’s state of
mind. 13 H.R. testified.

13 Defense counsel did not state any objection to the evidence on the record. Defendant argues that if defense counsel failed to properly object to this evidence, then counsel was9

.

H.R. ’s testimony as to the instant offense a nd the first incident was substantially the same as that recounted above during his trial testimony , and we wi ll provide only an
abbreviated version to avoid unnecessary duplication. On the day of the instant offense,
R.K. called H.R. and told him that de fendant was inside the restaurant and causing trouble by threatening her dad and stealing beer. She described defendant as the same individual who had previously harassed people in the restaurant. H.R. testified that only
one individual had been involved in such incidents at the restaurant, so he knew R.K. was referring to defendant.
H.R. testified as to the first incident. He also described a second incident involving defendant that occurred between the first incident and the instant offense. Regarding the second incident, H.R. received a call from the restaurant owner who
advised him that defendant had entered the restaurant through the back door, obtained a knife from the kitchen, and demanded money. When the owner refused, defendant yelled, left through the back door, and used the knife to stab all the tires o n vehicles parked nearb y. The owner used both the first and second incidents as example s o f why
full

- time security should be provided at the property.
H.R. also recognized defendant from approximately four contact s with him
between September 2018 and the first incident. During these earlier encounters, H.R. asked defendant to leave the property because he was loitering and panhandling.
When H.R. received R.K. ’s call on the day of the instant offense, H.R. knew the
individual in the restaurant was defendant and that defendant ha d not been arrested for the two prior incidents because of police response time s

. H.R. intended to detain defendant with handcuffs until the police arrived. When H.R. arrived at the restaurant, he recognized defendant as defendant left the restaurant.

constitutionally ineffective. The People do not argue defend ant forfeited his objections to the evidence , so we will reach the merits.10

. 2. Th e Trial Court’s Ruling The trial court tentatively ruled that it would admit some of the evidence because it was probative of H.R. ’s state of mind during the events of the instant offense and his ability to identify defendant as the individual R.K. saw cau s ing problems in the restaurant that day. The trial court later advised that the evidence was admissible “to establish the state of mind as to why [ H.R. ] would have felt that there was good cause to conduct a citizen’s arrest

. ” The trial court concluded that it would be probative and not unduly prejudicial under Evidence Code section 352 for H.R. to testify as to the first incident and his viewing of the video of th at incident. After additional evidence, the trial court reaffirme d its tentative ruling and held that the evidence was probative to show H.R. ’s state of mind in approaching defendant to detain him as part of a citizen’s arrest. The trial court excluded testimony regarding

statements made by customers in the background of H.R.’s call with R.K during the first
incident

. The trial court also ruled that H.R. could testify as to his other contacts with defendant but not the second incident involving the slashed tires. The trial court explained, “I think that’s relevant in terms of [ H.R. ] being familiar with [defendant’s] face and having seen [defendant] there.” A s to the instant offense, the trial court ruled
that H.R. could testify as to what he was told that caused him to respond to the restaurant

. Defense counsel reques ted that the court exclude defendant’s statements from the
video of the first incident because H.R. was not familiar with defendant’s voice. The trial

court then confirmed its tentative decision and found “a sufficient foundation laid for [ H.R. ] to testif y as to ... his state of mind

. ” The trial court also agreed to admonish the jury that the evidence could only be used to explain H.R. ’s state of mind in attempting to detain defendant during the instant offense. The trial court explained to H.R. the
limita tions on his testimony. The trial court instructed the jury as to the limited admissibility of this evidence approximately eight times during the trial. (See ante , fns. 5

– 12.) Additionally, prior to11

.

closing arguments, the trial court instructed the jury : “During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.”
B. Applicable Law and Standard of Review Defendant argues that the trial court erred in admitting evidence o f the first
incident because it was not relevant to whether H.R. ’s attempted citizen ’s arrest of defendant was lawful. Defendant also argues that, even if marginally relevant, the probative value of the incident was substantially outweighed by the danger of undue prejudice. We review the trial court’s evidentiary rulings for an abuse of discretion. ( People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405 ( Bryant ).)
1. Evidence of O ther A cts P ursuant to Evidence Code S ection 1101 “The general framewor

k for the admission of evidence as it relates to defendant’s challenge is as follows. Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is broadly defined as that having a ‘ tendency in reason to prove or disprove any disputed fact that is of consequence ’ to resolving the case. (Evid. Code, § 210.) Inferences drawn from the evidence must be logical and reasonable, not merely speculative. [Citation s .] All relevant evidence is admissible, unless a specific statutory
or constit utional provision bars its admission. (Evid. Code, § 351; Cal. Const., art. I, § 24.) If evidence is relevant and admissible for one purpose, but inadmissible if considered for another purpose, the trial court must admit it but, upon request, limit its
p roper scope and so instruct the jury. (Evid. Code, § 355.) “[Evidence Code] [s]ection 1101[, subdivision ](a) prohibits the admission of character evidence if offered to prove conduct in conformity with that character trait,
sometimes described as a propensity to act in a certain way. ” ( Bryant , supra , 60 Cal.4th at pp. 405

– 406.) “ [Evidence Code] [s]ection 1101[, subdivision ](b) provides for the admission of uncharged acts when relevant to prove some other disputed fact .” ( Id . at12

.

p. 406.) “ If an uncharged act is relevant to prove some fact other than propensity, the evidence is admissible, subject to a limiting instruction upon request.” ( Ibid .)
2. Balancing Probative Value V ersus Prejudice (

Evid. Code, § 352) “Even if uncharged acts evidence is otherwise admissible, an accused may still urge that [Evidence Code] section 352 should bar it from consideration. In the face of a timely objection (Evid. Code, § 353, subd. (a)), relevant evidence may still be excluded if its probative value is substan tially outweighed by the probability that its admission will require undue time consumption, will confuse or mislead the jury, or poses a substantial risk of undue prejudice.” ( Bryant , supra , 60 Cal.4th at pp. 406

– 407 , fn. omitted .)

“ ‘ “ ‘ “Prejudice” as contemplated by [Evidence Code] section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a [n] [Evidence Code] section 352 context, merely because it undermines the opp onent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. Unless the dangers of undue prejudice, confusion, or time consumption

“ ‘ substantially outweigh ’ ” th e probative value of relevant evidence, a [n] [Evidence Code] section 352 objection should fail. [Citation.] “ ‘ The “p rejudice ” referred to in
Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on
the issues. In applying [Evidence Code] section 352, “ prejudicial ” is not synonymous
with “ damaging. ” ’ [Citat ion.] ” [Citation.] [¶] The prejudice that [Evidence Code]
section 352 “ ‘ is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ’ [Citations.] ‘ Rather, the
statute uses the word i n its etymological sense of “ prejudging ” a person or cause on the
basis of extraneous factors. ’ ” ’ ” ’ ” ( Bryant , supra , 60 Cal .4th at p. 408 , second

– fifth seventh, & eleventh bracketed insertions added .)13

.

C. Analysis Defendant argues that the trial court er red in admitting evidence of the first
incident because H.R. ’s state of mind was not relevant to whether H.R. ’s attempted
citizen ’s arrest of defendant was lawful. We disagree because H.R. ’s state of mind was
relevant to both the issue of whether he was effectuating a citizen’s arrest and whether his attempt to handcuff defendant was a reasonable use of force such that defendant could not defend against it.

1. H.R. ’s State of Mind Was Relevant to the Validity of His Attempted Citizen’s Arrest The authori ty o f a citizen to arrest another person is contained in section 837: “A private person may arrest another: 1. For a public offense committed or attempted in his presence. [¶] 2. When the person arrested has committed a felony, although not in his
pres ence. [¶] 3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.” 14

14 By the time the People rested their case and the trial court instructed the jury, the prosecution was apparently relying upon section 837, subdivision (1) as authority for the ci tizen’s arrest, which includes misdemeanor offenses such as petty theft. The record, however, fails to reflect whether this was the prosecution’s theory or the basis for the trial court’s relevancy ruling during the Evidence Code section 402 hearing befor e the trial began. At trial, the first prosecution witnesses testified that defendant made criminal threats (a felony pursuant to § 422, subd. (a)). H.R. could have lawfully arrested defendant for that felony, although not committed in his presence, if h e had reasonable cause to believe that defendant committed it. (§ 837, subd. (3).) Because R.K. used the earlier incident s to communicate to H.R. that defendant was threat ening the employee s , evidence of the first incident would have been probative to establish H.R.’s reasonable cause to believe defendant committed the instant offense and to prove the lawfulness of the citizen’s arrest. However, the trial court struck the witness’s testimony before it was complete because the wi tness, in violation of the court’s order excluding it as unduly prejudicial, testified that defendant threatened her with a knife. Once the trial court struck that testimony, the prosecution could not prove a felony violation of section 422 to establish t

he lawfulness of H.R.’s attempted citizen’s arrest and could only rely upon petty theft to support the arrest. The trial court was not asked to revisit its ruling admitting evidence of the second incident after the testimony was stricken. While a felony violation of section 422 and section 837, subdivision (3) could have supported the trial court’s relevancy ruling, the parties and trial court did not discuss the first incident with reference to H.R.’s state of mind as to any particular subdivision of sec tion 837. Therefore, we shall proceed as the parties do, assuming the14

.

The term “ public offense ” includes misdemeanors. ( § 16 ). “ ‘Presence’ is not mere physical proximity but is de termined by whether the offense is apparent to the
officer ’ s [or citizen’s] senses [ c itation s ]

. We hold that the term ‘in his presence’ in
section 837 of the Penal Code must be similarly construed. Accordingly, since [the arresting citizen] saw [t he defendant] prowling in the neighborhood, the offense was
committed i

n her presence

. ” ( People v. Sjosten (1968) 262 Cal.App.2d 539, 543

– 544 .) Further, “[t]he person arrested may be subjected to such restraint as is reasonable
for his arrest and detention. ” (§ 835.) A person who makes a citizen’s arrest may use reasonable force to detain the arrestee and the arrestee has a duty not to resist the use of reasonable force to effect the arrest. ( People v. Fosselman (1983) 33 Cal.3d 572, 579.)
The arrestee h as no right of self

- defense against such force but may defend against the
use of excessive force in making the arrest as a n application of the law of self

- defense. ( People v. Adams (2009) 176 Cal.App.4th 946, 952

– 953 .) Unlike a warrantless arrest made by a police officer, a private citizen may not arrest a defendant based upon mere probable cause to believe that a crime was committed in his presence. (Compare § 836, subd. ( a ) with § 837, subd. (1).) Prior to 1957,
howe ver, the two statutes were coextensive and each authorized arrest “for a ‘ public offense committed or attempted in his presence. ’ ” ( Cervantez v. J. C. Penney Co. (1979)
24 Cal.3d 579, 590

– 591, fn. 4 ( Cervantez ) , superseded by statute on other grounds as
stated in Melendez v. City of Los Angeles (1998) 63 Cal.App.4th 1, 6

– 7.) In 1952, our Supreme Court interpreted such language in section 836 as authorizing a peace officer to arrest when he has probable cause to believe a misdemeanor is being committed in his presence. ( Coverstone v. Davies (1952) 38 Cal.2d 315, 320

– 321 .) In view of the identical language employed in section 837, subdivision (1) and applicable to citizen ’s

trial court ruled that H.R.’s state of mind was relevant only to establish the lawfulness of H.R.’s citizen’s arrest pursuant to section 837, subdivision (1).15

.

arrests, one court concluded that “a private citizen may arrest another when
circu mstances exist which would cause a reasonable person to believe a crime had been committed in his presence.” ( People v. Burgess (1959) 170 Cal.App.2d 36, 40

– 41.) However, t he L egislature’s decision to amend section 836 in 1957 to authorize a peace officer to make a warrantless arrest “ ‘ whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence , ’ ” without similarly amending section 837, “indicat [ es ] an intent to distinguish between the
authori ty of a peace officer and of a private citizen to arrest for a misdemeanor.” ( Cervantez , supra , 24 Cal.3d at pp. 590

– 591, fn. 4 .) Therefore, the lawfulness of a private citizen’s actions in arresting an individual is dependent upon a jury finding that
the defendant actually committed an offense in the private citizen’s presence and not just
that the citizen had probable cause to believe the individual did so. ( See i d

. at p. 591 [finding error in trial court’s instruction that an off

- duty officer’s acti ons in arresting
someone was lawful if the off

- duty officer (possessing only the authority of a private citizen) had probable cause to believe that an offense was committed in his presen ce ].) While the lawfulness of a citizen’s arrest is ultimately a quest ion of whether the defendant actually committed the crime for which he was arrested, the arresting citizen’s
state of mind is still relevant. Both defendant and the People have relied upon Gomez v.
Garcia (1980) 112 Cal.App.3d 392 in their arguments, but we do not believe that this case is applicable when construing section 837. In that case, the court concluded that the citizen’s state of mind is relevant to whether the arrest was lawful and held, “Where the validity of the arrest turns on whether that c onduct constitutes a public offense, the test to be applied must be one of whether the person making the arrest had a reasonable [and] good faith belief that it did.” ( Gomez , at p. 397.) However, Gomez relied upon
Coverstone v. Davies , supra , 38 Cal.2d 3 15, which interpreted section 836 and which, as16

.

explained in Cervantez, is not applicable to a private citizen ’s arrest pursuant to section 837. ( Cervantez , supra , 24 Cal.3d at p. 591.)
T he law that we have discussed is clear that the lawfulness of H.R. ’s citizen’s arrest is dependent upon whether, in fact, defendant committed a crime in H.R. ’s presence. If defendant committed a crime in H.R. ’s presence, then defendant had no right to defend against H.R. ’s attempts to touch defendant and forcibl y handcuff him if H.R. was making a lawful citizen’s arrest and was using reasonable force to restrain defendant

. I f H.R. was not attempting to arrest defendant or was not aware of the facts that proved defendant was committing a crime, the fact that defendant actually committed a crime in
H.R. ’s presence would not justify H.R. ’s actions in attempting to restrain defendant with
handcuffs and would not a ffect defendant’s right to legally defend himself. Therefore,
H.R. ’s state of mind, that is, whether H.R. intended to arrest defendant and the facts
known to H.R. that established defendant committed a crime in his presence, w as a necessary foundation for establishing H.R. ’s right to use reasonable force to restrain defendant. The jury was instructed : “A private person is making a lawful citizen’s arrest if he acted because the person arrested committed or attempted to commit petty theft , in
violation of Penal Code S ection 484 , in the private person’s presence

. ” (I talics adde d.) Our conclusion is supported by People v. Aldapa (1971) 17 Cal.App.3d 184. In that case, officers acting outside of their jurisdiction arrested the defendant based upon
informati on learned from four informants that the defendant was distributing drugs. ( Id

. at p. 186.) At that time, the city officers required the permission of the sheriff to make

arrests outside of city limits , and they did not have such permission. ( Id

. at p. 187.) Therefore, t he city officers’ authority to arrest was determined by section 837 and limited

to that of a private citizen in the same circumstances. ( Aldapa , at p. 188.) In construing
section 837, subdivision (3) , the court stated, “For there to be a valid arrest by a private
citizen under Penal Code section 837, subdivision (3), the requirement that there in fact17

.

be a felony committed can only be met if there is evidence of the corpus delicti and it is an offense known by the arresting party to have been committed .” ( Aldapa , at p. 188 , italics added ; see People v. Piorkowski (1974) 41 Cal.App.3d 324, 328 .) As the jury was instructed, t he crime of petty theft requires proof that defendant took property of the rest aurant without consent, intend ed to deprive the owner of it permanently, and moved the property and kept it for any period of time . ( See § 484;
CALCRIM No. 1800.) H.R. testified that he arrested defendant, in part, because
defendant left the restaurant w ith an unopened beer that H.R. believed defendant had
taken without consent. 15 Evidence of the first incident was probative to explain how
H.R. knew that defendant took the beer with the intent to deprive the restaurant of its property during the instant offense because defendant had also done so during the first
incident

. “ ‘ “We have long recognized ‘that if a person acts similarly in similar situations, he probably harbors the same intent in each instance’

.... The inference to be
drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecut ion.” ’ ” ( People v. Roldan (2005)
35 Cal.4th 646, 706 , overruled on other grounds as stated in People v. Doolin (2009)
45 Cal.4th 390, 421, & fn. 22; see Evid. Code, § 1101, subd. (b) [ evidence that a person committed a crime, civil wrong, or other act i s admissible when relevant to prove intent , knowledge , or absence of mistake or accident ].) In addition, R.K. told H.R. that an individual was causing trouble, threatening employees, and stealing beer on th e day of the instant offense and described the

15 Defendant suggests in h is reply brief that under the facts of this case, his crime did not occur in H.R.’s presence as a matter of law. We disagree. H.R. was at the door of the restaurant as defendant took the beer when leaving the restaurant. Based upon H.R.’s physical proxi mity and his own senses, the jury could conclude that defendant completed the theft in H.R.’s presence. (See People v. Sjosten , supra , 262 Cal.App.2d at pp. 543

– 544.)18

.

ind ividual as the same individual who had done so previously. Evidence of the first incident was, therefore, also probative to explain how H.R. identified defendant as the individual in the restaurant causing trouble when defendant left the restaurant, as op posed to a customer who lawfully purchased beer. ( See Evid. Code, § 1101, su b d. (b) [evidence that a person committed a crime, civil wrong, or other act is admissible when relevant to
prove identity].)
R.K. ’s description of defendant’s behavior in the restaurant also supported H.R. ’s
conclusion that defendant’s conduct in the restaurant made it unlikely that he would have purchased the beer or been given the beer by an employee before leaving the restaurant

. Furthermore, evidence as to the first incident was relevant to the jury’s
determination of whether H.R. used reasonable force to detain defendant

. A person who makes a citizen’s arrest may use reasonable force to detain the arrestee , and the arrestee
has a duty not to resist the use of reasonable force to effect the arrest. ( People v.
Fosselman , supra , 33 Cal.3d at p. 579 .) Therefore, H.R.’s knowledge of defendant’s past and present conduct at the restaurant i s probative of the reasonable amount of forc e H.R.
could have use d to restrain or arrest defendant and in assessing H.R.’s use of handcuffs to
detain defendant.

2. The Trial Court Did Not Abuse Its Discretion i n Concluding t

hat t he Evidence Was More Probative t han Prejudicial
Defendant argues the trial court should have excluded evidence of the first
incident because it was unduly prejudicial. We disagree. We review this claim solely for
abuse of discretion. ( People v. Kipp (1998) 18 Cal.4th 349, 371.) We find none.
The court ’ s ruling was not a n abuse of discretion pursuant to Evidence Code
section 352. Defendant bases his argument to the contrary mainly on his contention that
the incident did not help prove an element of the crime in this case. As we have
discussed , that view is incorrect. T he evidence of the first incident tended to prove that defendant did not take the beer by accident, that he intended to deprive the restaurant of19

.

its property, and that H.R. ’s use of handcuffs to attempt to restrain defendant was not an unreasonable use of force. The first incident showed t hat defendant threw bottles, broke glass, and threatened harm to individuals. That defendant previously deprived the restaurant of its property tended to prove that defendant intended to do so during the
instant offens e when he removed the beer from the restaurant in H.R.’s presence. Thus,
because H.R. knew that defendant had already done something similar, H.R. was entitled to believe it less likely that defendant paid for the beer

.

“ ‘Under the abuse of discretion standard, “a trial court ’ s ruling will not be disturbed, and reversal

... is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” ( People v. Foster (2010) 50 Cal.4th 1301, 1328

– 1329

. ) We are unable to conclude on this record that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner. The trial court held a hearing outside the presence of the jury before trial commenced to determine the facts of the evidence of prior conduct
offered . The trial court listened to H.R.’s testimony regarding first incident (that included defendant’s conduct in taking and destroying drink bottles) and a seco nd incident whereby defendant threatened the owner with a knife and then used the knife to slash
tires. The trial court determined that evidence of the first incident could be introduced
but excluded the second incident with the knife as unduly prejudicia l given defendant’s

use of the weapon as charged in the instant offense

. During the first incident , defendant did not possess a weapon and the conduct was not more egregious than the during the
instant offense. The trial court also agreed to admonish the jury and did so approximately eight times during the course of testimony by instructing the jury t o consider some testimony for limited purposes only

. (See ante , fns

. 5

– 12.) Moreover, the limiting instructions the court read during testimony and before argument directed the jury not to consider the other crimes evidence for an y thing other20

.

than evidenc e of H.R. ’s state of mind

. “ ‘ We presume the jury followed these
instructions. ’ ” ( People v. Chhoun (2021) 11 Cal.5th 1, 30.) Therefore, we conclude the trial court properly admitted the evidence of the first incident to show H.R. ’s state of
mind in effecting a citizen’s arrest. 16

II. The trial court did not abuse its discretion by denying defendant’s request to strike his prior serious felony conviction. Defendant argues that the trial court abused its discretion in denying his request t o strike his prior serious felony conviction pursuant to section 1385, subdivision (a) and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 ( Romero )

. 17 We reject defendant’s argument as the trial court acted within its discretion when it denied
def endant’s request to strike his prior serious felony conviction.
A. Background The trial court found true that defendant had been convicted of carjacking in 2003 (§ 215 , subd. (a) ) and second degree robbery in 2013 (§ 212.5 , subd. (c) ). The probation officer’ s presentence report described defendant’s lengthy criminal history comprised of three juvenile adjudications between 1996 and 1998 involving theft (defendant hit a victim and stole a bike, was in found in possession of a purse that had been stolen at gunpoint, and acted as a lookout while an accomplice robbed a victim of a cassette player).

16 Because we find no error in the trial court ’s admission of the evidence, we need not address defendant ’ s argument regarding whether or not its admission was harmless. Additionally, b ecause the court did not abuse its discretion in admitting the evidence under state law, defendant’s argument that admission of the evidence violated due proc ess a lso fail s

. ( See People v. Fuiava (2012) 53 Cal.4th 622, 670 .)
17 A defendant’s request for this type of leniency is commonly referred to as a “ Romero motion , ” although defendants do not actually have a right to make motions under section 1385. ( People v. Carmon y (2004) 33 Cal.4th 367, 375, 379 ( Carmony ).)21

.

Defendant’s prison records show that b etween 1999 and 2003, defendant was

co nvicted of four misdemeanor crimes involving receiving stolen property, fighting, false identification to a police officer, taking a vehicle without consent , domestic violence, and second degree burglary. While on probation for those offenses, defendant w as convicted of carjacking and was sentenced to a term of four years in prison in October 2003.
Between 200 7 and 2011, defendant was paroled and returned to prison approximately
11 times and absconded from parole two times until his parole was discharged in July 2011. He was also convicted of two misdemeanor drug offenses between 2010 and
2012.
Defendant was arrested on December 29, 2011, for second degree robbery and sentenced to four years in prison on September 17, 2013. Defendant was imprisoned in
Oc tober 2013 and paroled in April 2017. Defendant was arrested in August 2018 for taking a vehicle without the owner’s consent and sentenced to a three

- year term of probation on April 3, 2019. Defendant absconded twice from parole between 2017 and
2019 and committed the instant offense on April 12, 2019 , only nine days after being sentenced to probation

. The probation officer found one circumstance in mitigation

— defendant was suffering from a mental health condition that significantly reduced his culpabilit y for the crime. Circumstances in aggravation included : (1) defendant had engaged in viol ent conduct that indicated he was a serious danger to society ; (2) defendant’s prior
convictions as an adult were numerous ; (3) defendant served three prior prison t erms ; (4) defendant was on misdemeanor probation when the crime was committed ; and (5) defendant’s prior performance on juvenile probation, misdemeanor probation, felony probation, and parole were unsatisfactory as he violated terms and/or reoffended.
Defe n se counsel submitted a motion that invited the trial court to strike defendant’s prior convictions pursuant to Romero , supra , 13 Cal.4th 497 and22

.

section 1385. Counsel argued that (1) the convictions were remote in time, (2) the Three
Strike s punishment is disproportionate to the offense, (3) defendant would still spend a substantial amount of time in custody, (4) defendant did not cause any physical harm or injury, and (5) defendant has a considerable history of mental illness.
Defense couns el further argued that defendant was paroled on April 12, 2017, and, although he suffer ed three parole revocations, apart from the instant charges, defendant had only been convicted of one misdemeanor offense since his discharge of parole on
June 8, 2020

. 18 Counsel also argued that defendant had a long history of mental illness (as documented by mental competency reports prepared earlier in the case)

. At sentencing, defense counsel argued that the offense could have been charged as a misdemeanor in light of the lack of injury to H.R . She also argued that defendant may not have understood that a private citizen could effectuate an arrest when he resisted and that defendant fled quickly thereafter rather than attacking H.R. after he fell to the ground.
The trial court noted that it must consider the nature and circumstances of defendant’s prior felony convictions and the particulars of his background, character , and prospects when determining whether he may be deemed outside the spirit of the Three Strikes law. The court first noted that defendant “definitely” had a lengthy criminal history that included three juvenile convictions commencing in 1996. The court characterized defendant’s 2000 burglary conviction, 2003 domestic violence conviction, 2003 carjacking felony conviction, numerous parole violations, and 2004 battery conviction as involving “violent behavior.” Defendant committed drug offenses after his release from prison and then committed his second strike conviction in

18 We note that defendant was in custody on these charges from May 9, 2019, through October 21, 2020.23

.

2011 that resulted in a prison commitment “and was still on parole from that commitment at the time of the offense in this case.”
The trial court noted that “there has not been any substantial period of time where [] defendant has shown that he has made any progress to rehabilitating himself, toward becoming a productive member of our community, toward having the type of character and prospects that would lead him to a law

- abiding life.” Regarding the instant offense, the trial court recognized the seriousness of the offense, that H.R. narrowly escaped serious injury from the stabbing instrument, and that defendant’s use of force was “totally
unnecessary , ” eve n if defendant felt he needed to defend himself , because the H.R. ’s conduct did not threaten deadly force. The trial court exercised its discretion to deny defendant’s request to strike his prior convictions.
B. Applicable Law and Standard of Review
Section 1385 grants trial courts discretion to dismiss a prior strike conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero , supra , 13 Cal.4th at
pp. 504, 529

– 530.) “ ‘

... A court’s discretion to strike [or vacate] prior felony convi ction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with ... section 1385[, subdivision ](a) ....’ ” ( People v.
Williams (1998) 17 Cal.4th 148, 158 , third bracketed insertion added ( Williams ).) The Three Strikes law “was intended to restrict courts’ discretion in sentencing repeat offenders.” (

Romero , at p. 528; accord, People v. Garcia (1999) 20 Cal.4th 490, 501 [“a primary purpose of the Three Strikes law was to restrict judicial discretion” ].) The Three Strikes law establishes “ ‘a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike , ’ ” unless the sentencing court finds a reason for making an exception to this rule. ( Carmony , supra , 33 C al.4th at
p. 377.) There are “stringent standards that sentencing courts must follow in order to find such an exception.” ( Ibid .) In order to dismiss a prior strike conviction, “the court in24

.

question must consider whether, in light of the nature and cir cumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence s hould be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” ( Williams , supra , 17 Cal.4th at p. 161.) A trial court’s decision not to dismiss a prior strike conviction is reviewed under
the deferential a buse of discretion standard. ( Carmony , supra , 33 Cal.4th at p. 374 .) The Three Strikes law establishes that not striking a prior serious felony conviction is the norm, and there is a “strong presumption that any sentence that conforms to the[] sentencing norm[] is both rational and proper.” ( Carmony , at p. 378.) An ab use of discretion is established by demonstrating that the trial court’s decision was “irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions.” ( People v. Myers (1999) 69 Cal.App.4th 305, 310.) “Where the record is silent [citation] , or ‘[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law,’ ” we are required t o affirm the trial court’s ruling, “ ‘even if we might have ruled differently in the first instance.’ ” ( Carmony , at p. 37 8 , first bracketed insertion added.)
C. Analysis We conclude that defendant has failed to establish that the trial court’s denial of
def endant’s request to strike his prior serious felony conviction was outside the bounds of reason under the facts and the law. We may not find an abuse of discretion unless the decision was so irrational or arbitrary that no reasonable person could agree wi th it. And here, it was not.25

.

At sentencing, the trial court stated that it had reviewed the motion and applicable legal authority

. T

he trial court found that defendant did not fall outside the spirit of the
Three Strikes law because defendant “definitely ” had a lengthy criminal history that included three juvenile convictions commencing in 1996 and convictions evidencing “violent behavior , ” such as burglary and domestic violence , before his first violent felony conviction for carjacking. Defendant was st ill on parole for his second violent felony conviction for second degree robbery when he committed the instant offense. The trial court noted that defendant had no substantial period of time wherein he failed to commit criminal offense and had shown no pr ogress to ward leading a law

- abiding life. Regarding the instant offense, the trial court recognized the seriousness of the offense,
that H.R. narrowly escaped serious injury from the stabbing instrument, and that defendant’s use of force was excessive , ev en if he felt he needed to defend himself , because H.R. ’s conduct did not threaten deadly force. The trial court’s discussion of proper considerations, along with the presumption
that denial of a Romero motion is a proper exercise of discretion ( Carmony , s upra , 33 Cal.4th at p. 378), support our conclusion that the trial court’s denial of defendant’s motion was not an abuse of discretion. The trial court’s decision was not “so irrational or arbitrary that no reasonable person could agree with it.” ( Id

. at p. 377.) As we explain below, defendant ’ s arguments do not persuade us. Defendant first contends the trial court abused its discretion in denying his Romero motion as he falls outside the spirit of the Three Strikes law because no one was physically injur ed during the instant offense. He also argues that H.R. unjustifiably provoked defendant in trying to arrest him. He argues this mitigates his conduct and that
he is not within the Three Strikes law even with his extensive criminal record. However, “the Three Strikes law was devised for the ‘revolving door’ career criminal, and was expressly intended ‘to ensure longer prison sentences

... for those who commit a felony’26

.

as long as they were previously convicted of at least one strike.” ( People v. Strong (2001) 87 Cal.App.4th 328, 331

– 332, fns. omitted.) As the trial court recognized,
defendant ’ s criminal history began when he was still a juvenile and c ontinued with increasing seriousness and without any significant gaps in time until he committed the
in stan t offense at 40 years old

. Based upon defendant’s history, the trial court noted defendant did not have any substantial period of time where he showed he was rehabilitating himself. The trial court correctly recognized that defendant did not fall

out side the spirit of the Three Strikes law. Defendant argues that the trial court abused its discretion because, referring to the nature and circumstances of the offense, H.R. was not injured. Defendant also challenges
whether H.R. ’s attempted arrest was la wful. As we have previously concluded, however, defendant completed his theft of the beer in H.R. ’s presence and, therefore, the citizen ’s arrest was lawful. In addition, the trial court heard the evidence and concluded that H.R. narrowly escaped a serio us injury from defendant’s stabbing attempt. The trial court further noted that defendant’s use of force was totally unnecessary because H.R. did not pose a threat to defendant and the lack of injury , while fortuitous, was not due to defendant’s lack of t rying to hurt H.R

. Defendant also argues that the trial court failed to consider th e lengthy sentence s it could have imposed if it dismiss ed one or more of his strike s , relying upon People v.
Garcia , supra , 20 Cal.4th 490. However, the trial court in Garcia dismissed the defendant’s strikes because hi s “ prior convictions all arose from a single period of aberrant behavior for which he served a single prison term ” and “ his criminal history does not include any actual violence .” ( Id

. at p. 503.) Defendant’s criminal record includes violent crimes that spanned decades. Defendant also suggests that the trial court was “blinded by the defendant’s prior convictions” and that “ [ n ] o valid penological purpose would be served in this case by27

.

imposing a sentence of 35 years to life when sentences up to 14 and 18 years were
available ,” relying on People v. Bishop (1997) 56 Cal.App.4th 1245, 1250

– 1251. First, Bishop , in deferentially reviewing the trial court’s act of striking two of th e defendant’s prior strike convictions, upheld that exercise of discretion. Here, we deferentially review the court’s denial of defendant’s motion to strike his prior strike conviction. The court considered the proper criteria in ruling on defendant’s mo tion, and we may not substitute our own judgment. ( Carmony , supra , 33 Cal.4th at p. 377.) Second, Bishop predates
Williams , supra , 17 Cal.4th 148, and consequently did not apply the appropriate standard:
whether the defendant should be deemed to fall ou tside the scheme’s spirit. The court here applied the correct standard and its denial of the motion was not “so irrational or arbitrary that no reasonable person could agree with it.” ( Carmony , supra , 33 Cal.4th at p. 377.) Defendant also argues his home lessness caused him to be in situations where it was necessary for him to use force and he suffered from mental
illness , support ing a finding that defendant is outside the spirit of Three Strikes law. However, defendant has not presented affirmative evidence that his case was so “extraordinary” as to require the dismissal of his prior strike, or that the trial court ’ s decision not to dismiss his prior strike was irrational or arbitrary even in light of these
circumstances

. (See Carmony , a t pp. 378

– 379.) Even if reasonable minds could differ about whether to strike a prior conviction in this case, this would not establish an abuse of discretion. ( Carmony , supra , 33 Cal.4th at
pp. 376

– 378.) In fact, only where the relevant factors manifest ly support the striking of a prior conviction and no reasonable mind could differ would the failure to do so constitute an abuse of discretion. ( Id . at p. 378.) This is not such a case.
Defendant has failed to show that the trial court was either unaware of its discretion or considered impermissible factors. We cannot say that its ruling was irrational or arbitrary such that no reasonable person could agree with it. The record28

.

shows that the trial court considered defendant’s arguments as well as his cr iminal history and his conduct in the instant offense in declining to strike his prior serious felony conviction. On the record before us, the trial court did not abuse its discretion in deciding that the prior serious felony conviction and the instant of fense fell within the spirit of the
Three Strikes law.
DISPOSITION The clerk of the superior court shall prepare an amended abstract of judgement correcting section 1 to show that defendant was convicted by jury and not by plea and
section 8 by check ing th e box that defendant was sentenced pursuant to Penal Code
section 667, subdivisions (b)

– (i) and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

HILL, P. J. WE CONCUR:

POOCHIGIAN, J.

DETJEN, J.