People v. Ariza CA4/3

Opinion

Filed 9/14/26 P. v. Ariza CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G064848 v. (Super. Ct. No. 22WF0123)

ERICK GARCIA ARIZA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Lance P. Jensen, Judge. Affirmed. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, A. Natasha Cortina and Liz Olukoya, Deputy Attorneys General, for Plaintiff and Respondent. * * * Defendant Erick Garcia Ariza appeals after being convicted and sentenced to 90 years to life in prison for sexually abusing his stepdaughter. He contends the trial court erred in admitting into evidence statements he made to law enforcement before he was formally arrested because they were the product of a custodial interrogation before which he was not advised of his Miranda1 rights. In addition, Ariza argues a later interrogation, conducted after he was formally arrested and provided Miranda warnings, should have been suppressed pursuant to Missouri v. Seibert (2004) 542 U.S. 600 (Seibert) because officers used a deliberate two-step interrogation strategy without intervening curative measures. We conclude the trial court erred in admitting Ariza’s unwarned statements but did not err in admitting the warned statements. Because we find the sole error to be harmless beyond a reasonable doubt, we affirm the judgment. FACTS I. REPORT OF ABUSE After sustaining years of sexual abuse by Ariza, beginning when she was about 11 years old, P.M. reported the abuse for the first time to her then boyfriend when she was 18 years old. Her boyfriend accompanied her to tell her two brothers. The four of them decided to confront Ariza and tell the rest of the family at the house where P.M. lived with her mother, her sisters, and Ariza.

1 Miranda v. Arizona (1966) 384 U.S. 436, 467 (Miranda).

2 When her mother came home from work, P.M. told her what had been happening. Ariza was there and responded, “‘That’s not true. That’s not how it happened.’” P.M.’s brother told her to step outside, which she did, and about 10 minutes later Ariza left the house with “his stuff.” Two days later, after being partially blamed by her mother for the abuse, P.M. went to a police station to report the abuse. Costa Mesa Police Officer Dominic Tedesco interviewed her, and she explained everything that had happened. The same officer also separately interviewed P.M.’s boyfriend who had come with her. P.M. asked if law enforcement would go with her to collect her belongings because she did not want to go to her house alone. Officer Tedesco accompanied P.M. to get her belongings. While at the house, he spoke with P.M.’s mother who said Ariza was at a park saying goodbye to some of his kids and was ready to turn himself in. Officer Tedesco sent two other officers who were with him, Officer Jared Osborn and Officer Elliott, to the park identified by the mother to ensure Ariza would not flee while he finished assisting P.M. II. CIRCUMSTANCES LEADING TO ARIZA’S ARREST Officers Osborn and Elliott arrived at the park and parked their two marked police vehicles, one behind the other. They were in uniform and each had with them a holstered gun and taser. They observed a truck consistent with information they had been given about Ariza’s vehicle, to the rear of which were Ariza, two females, and a male. The latter individuals later identified themselves as Ariza’s daughter and son, and the son’s girlfriend.

3 The officers exited their vehicles, Officer Elliott called out Ariza’s first name as they started walking toward Ariza, and Ariza took a few steps toward them. The officers asked how Ariza was doing and inquired whether they could search him to make sure he did not have any weapons. Ariza agreed. The search did not uncover any weapons, but the officers took Ariza’s wallet from his pocket. Officer Elliott asked if Ariza understood he was “being detained right now,” to which Ariza responded affirmatively, and then Officer Elliott clarified “[s]o that means you can’t leave.” He told Ariza to “come over here,” “take a seat on the push bumper” of one of the patrol vehicles, and “hang out” with Officer Osborn “real quick.” During the roughly five minutes it took for Officer Tedesco to arrive, Officers Osborn and Elliott exchanged a few words with Ariza, who sat with his arms behind his back. In response to a question from Ariza about whether it would be okay to move his hat down to block the sun, Officer Osborn said he could. A couple of minutes later, Officer Elliott informed Ariza there was another officer on his way who was going to talk to him and they would “[p]robably try to . . . figure out if [his] kids need[ed] anybody to talk to or if they need[ed] help with anything.” When asked about his car keys, Ariza responded his son had them and was going to take care of his truck. When Officer Tedesco arrived, he observed Ariza “leaning up against [the] front of a patrol vehicle talking with two officers.” After Officer Elliott told Officer Tedesco he thought Ariza “sorta knows what’s going on,” Officer Tedesco introduced himself to Ariza. The exchange then proceeded as follows: “OFC. TEDESCO: . . . How’s it going? Could be better? “[Ariza]: Yeah. Just waiting. “OFC. TEDESCO: Why . . .What are you waiting for?

4 “[Ariza]: For you guys. “OFC. TEDESCO: For us? “[Ariza]: Yeah. “OFC. TEDESCO: Why is that? “[Ariza]: Because we [sic] I know like you guys were gonna come here. “OFC. TEDESCO: Say again? You can speak up a little louder. “[Ariza]: Because I know that you guys were going to come over here. “OFC. TEDESCO: You knew you were going to come over here? “[Ariza]: Yeah. “OFC. TEDESCO: For you? “[Ariza]: Yes. “OFC. TEDESCO: Why? “[Ariza]: Because of what I did. “OFC. TEDESCO: What did you do? “[Ariza]: Like uh abuse. “OFC. TEDESCO: Huh? “[Ariza]: Abuse. “OFC. TEDESCO: Abuse? What kind of abuse? “[Ariza]: Umm what is it like . . . sexual abuse. “OFC. TEDESCO: Sexual Abuse? “[Ariza]: Mhm. “OFC. TEDESCO: With who? “[Ariza]: My daughter. “OFC. TEDESCO: Who? “[Ariza]: My daughter.

5 “OFC. TEDESCO: Your daughter? “[Ariza]: Step-daughter. “OFC. TEDESCO: Step-daughter? Which one? “[Ariza]: Uhh [P.M.]. “OFC. TEDESCO: [P.M.]. Erick, did you uh ever touch anyone else? “[Ariza]: No. No. “OFC. TEDESCO: Just [P.M.]? Why her? “[Ariza]: It just happened. “OFC. TEDESCO: It just happened? “[Ariza]: Yeah. “OFC. TEDESCO: How old was she when you first touched her? “[Ariza]: Um I don’t remember how old. “OFC. TEDESCO: How many years ago? “[Ariza]: Hmm, I don’t know she was 15, 16.” Officer Tedesco’s questioning lasted about seven minutes, with questions ranging from whether Ariza engaged in certain types of behavior with P.M., to where things took place, to how old P.M. was at various times. Throughout, Officers Osborn and Elliott stood next to Ariza and Officer Tedesco. Over the course of the questioning, Ariza admitted to “cuddling” with P.M., “play[ing] with each other” with hands, and having vaginal, oral, and anal intercourse with her. At first, Ariza repeatedly denied doing the latter, but he eventually admitted to it after Officer Tedesco said he was “going to ask [him] one more time.” When the questioning ended, Officer Tedesco allowed Ariza to say goodbye to his kids and then formally arrested him by placing him in handcuffs. About an hour later, Ariza was questioned at the police station by 6 two other police officers after being advised of his Miranda rights and indicating he understood them. During the roughly two-hour warned interrogation, Ariza admitted to engaging in extensive sexual activity with P.M., claiming it was all consensual and done without any force or threat. III. THE CHARGES An information charged Ariza with 10 counts: lewd act upon a child under 14 (Pen. Code, § 288, subd. (a)), aggravated sexual assault of a child (penetration) (id., § 269, subd. (a)(5)), forcible lewd act on a child under 14 (id., § 288, subd. (b)(1)), aggravated sexual assault of a child (rape) (id., § 269, subd. (a)(1)), two counts of forcible rape (id., § 261, subd. (a)(2)), two counts of forcible sodomy (id., § 286, subd. (c)(2)(A)), and two counts of forcible oral copulation (id., § 288a, subd. (c)(2)(A)). Also alleged as to most counts were four aggravating factors: (1) the offenses involved great violence, great bodily harm, threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, and callousness (Cal. Rules of Court, rule 4.421(a)(1)); (2) the victim was particularly vulnerable (id., rule 4.421(a)(3)); (3) the offense was carried out with planning, sophistication, and professionalism (id., rule 4.421(a)(8)); and (4) Ariza took advantage of a position of trust and confidence to commit the offenses (id., rule 4.421(a)(11)). IV. ARIZA’S MOTION TO SUPPRESS Prior to trial, the prosecution sought to have Ariza’s statements to Officer Tedesco on the day he was arrested deemed admissible. Ariza moved to suppress those statements, arguing they were made during a custodial interrogation and he was not provided Miranda warnings 7 beforehand. The court reviewed videos from the body worn cameras of Officer Osborn, Officer Elliott, and Officer Tedesco, along with transcripts thereof. During an Evidence Code section 402 hearing, Officers Osborn and Tedesco testified. Officer Osborn said he was with Officer Tedesco at P.M.’s house when Officer Tedesco told him to go to the park identified by P.M.’s mother to see if Ariza was there. It was about five minutes away from the house, and neither Officer Osborn nor Officer Elliott had the sirens or lights of their patrol vehicles on. Upon seeing them, Ariza “began walking towards [them].” At no point did either officer draw their weapon, place Ariza in handcuffs, or tell him he was under arrest. Officer Tedesco explained he was the lead officer on the matter and in charge of all the interviews, so he spoke to Ariza at the park “to get . . . his side of the story.” After hearing the testimony, and considering all briefing, exhibits, and argument, the trial court concluded the totality of the circumstances showed the interrogation was not custodial and, thus, there was no Miranda violation. It found Officer Tedesco’s questioning was “part of an initial investigation or some times [sic] called on-scene questioning.” The court further noted the interaction “appeared to be voluntary,” as Ariza “freely walked up and almost appeared to be turning himself in so to speak” when the first two officers arrived, there was no restraint on Ariza’s freedom or movement, and “[t]here didn’t appear to be any type of domineering or controlling or aggressive or confrontational or accusatory or any type of express or implied pressure tactics” employed by the officers. V. CONVICTION AND SENTENCING Testifying at trial were P.M., the boyfriend to whom she originally reported the abuse, Officer Tedesco, the two police officers who 8 questioned Ariza after his arrest, and a clinical and forensic psychologist who testified as an expert about child sexual abuse accommodation syndrome. The jury found Ariza guilty on all counts. After a request by Ariza for a court trial on the aggravating factors, the court found all four aggravating factors true. It sentenced him to a total of 30 years to life plus 60 years determinate. Ariza timely appealed. DISCUSSION Ariza challenges the trial court’s admission of both his unwarned and warned statements. He argues the former were the product of an unlawful custodial interrogation without Miranda warnings, and the latter violated Seibert’s prohibition on certain deliberate two-step interrogation strategies by police officers. We find no merit in the latter contention. As for the former, although we conclude the unwarned statements were the product of a custodial interrogation under Miranda, the error in admitting them was harmless beyond a reasonable doubt in light of the properly admitted warned statements and the remainder of the evidence. I. CUSTODIAL INTERROGATION Ariza contends the trial court wrongly characterized the park interrogation as noncustodial and, thus, erred in concluding there was no Miranda violation. We agree. A. Applicable Law and Standard of Review “In Miranda, supra, 384 U.S. 436, the United States Supreme Court held that a person questioned by law enforcement after being ‘taken into custody’ must first be warned that he or she has the right to remain silent, that any statements he or she makes may be used against the person, and that he or she has a right to the presence of an attorney, either retained 9 or appointed. [Citation.] If police take a suspect into custody and then interrogate the person without informing of such rights, the person’s responses cannot be introduced into evidence to establish his or her guilt.” (People v. Saldana (2018) 19 Cal.App.5th 432, 454 (Saldana).) “The obligation to administer Miranda warnings attaches only when the person questioned is in ‘“custody.”’ [Citation.] In Miranda jurisprudence, custody is ‘a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.’” (Saldana, supra,19 Cal.App.5th at p. 454.) In that respect, the “primary concern is the ‘psychological pressures “which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely,”’ which are created by ‘“incommunicado interrogation”’ in an unfamiliar ‘“police-dominated atmosphere.”’ [Citation.] The Miranda court reasoned that ‘[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.’” (Id. at pp. 454–455.) “In determining whether a person is in custody for purposes of applying Miranda, the issue is whether, in light of the ‘“objective circumstances of the interrogation,” [citation], a “reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.”’ [Citation.] ‘And in order to determine how a suspect would have “gauge[d]” his “freedom of movement,” courts must examine “all of the circumstances surrounding the interrogation.”’” (Saldana, supra, 19 Cal.App.5th at p. 455.) “Courts have identified factors that are relevant in determining whether the defendant was in custody during police questioning. [Citation.] ‘No one factor is dispositive. Rather, we look at the interplay and combined 10 effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest.’” (Saldana, supra, 19 Cal.App.5th at p. 455.) The relevant factors include: (1) “‘whether contact . . . was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview’”; (2) “‘whether the express purpose of the interview was to question the person as a witness or a suspect’”; (3) location of the interview; (4) whether police informed the person they were under arrest or in custody; (5) whether they informed the person they were free to terminate the interview and leave at any time; (6) “‘whether there were restrictions on the person’s freedom of movement during the interview’”; (7) length of the interrogation; (8) “‘how many police officers participated’”; (9) “‘whether they dominated and controlled the course of the interrogation’”; (10) “‘whether they manifested a belief that the person was culpable and they had evidence to prove it’”; (11) “‘whether the police were aggressive, confrontational, and/or accusatory’”; (12) “‘whether the police used interrogation techniques to pressure the suspect’”; and (13) “‘whether the person was arrested at the end of the interrogation.’” (Ibid.) Because “[t]he Miranda decision was ‘not intended to hamper the traditional function of police officers in investigating crime,’” officers are permitted to detain a person for questioning under certain circumstances without the need to administer Miranda warnings. (People v. Miller (1969) 71 Cal.2d 459, 480–481.) More specifically, “a policeman who lacks probable cause but whose ‘observations lead him reasonably to suspect’ that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to ‘investigate the circumstances that provoke suspicion.’” (Berkemer v. McCarty (1984) 468 U.S.

11 420, 439, fn. omitted (Berkemer); accord People v. Tully (2012) 54 Cal.4th 952, 982–983.) This includes, for example, “‘[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.’” (Miller, at p. 481.) The questions typically must be moderate in number and geared toward “determin[ing] [a person’s] identity and to try to obtain information confirming or dispelling the officer’s suspicions.” (Berkemer, at p. 439; accord People v. Clair (1992) 2 Cal.4th 629, 679 (Clair).) Such investigatory questioning “enable[s] the police to quickly ascertain whether [the detained] person should be permitted to go about [their] business or held to answer charges.” (People v. Milham (1984) 159 Cal.App.3d 487, 500.) “On appeal, ‘we accept the trial court’s findings of historical fact if supported by substantial evidence but independently determine whether the interrogation was “custodial.”’” (Saldana, supra, 19 Cal.App.5th at p. 454.) B. Analysis Ariza argues he “should have been advised of his [Miranda] rights before being questioned” by Officer Tedesco because, in addition to other circumstances, he “was told he could not leave.” The Attorney General counters that the situation should instead be considered an investigatory detention for which Miranda warnings were not needed. Based on the totality of the circumstances, we conclude this was not an investigatory detention. After P.M. reported years of sexual abuse by Ariza and P.M.’s mother informed Officer Tedesco that Ariza was at a nearby park, Officer Tedesco sent two officers there to make sure Ariza did not flee. Officer Tedesco then arrived at the park; he testified he wanted to get Ariza’s side of the story. While the first few questions asked by Officer Tedesco could be 12 considered “‘“on-the-scene questioning, designed to bring out [Ariza’s] explanation or lack of explanation of the circumstances which aroused the suspicion of the police, and enable the police to quickly determine whether they should allow [Ariza] to go about his business or hold him to answer charges”’” (People v. Hauglund (1981) 115 Cal.App.3d 248, 256), the large majority of the seven-minute interrogation cannot be so characterized. It was not used “to determine [Ariza’s] identity and to try to obtain information confirming or dispelling the officer’s suspicions” that a crime had been committed. (Clair, supra, 2 Cal.4th at p. 679.) Instead, the questioning sought specific details of what, where, and when in relation to Ariza’s sexual activities with P.M. Notably, courts have repeatedly described the type of investigatory questioning allowed without Miranda advisements as being done by “a policeman who lacks probable cause but whose ‘observations lead him reasonably to suspect’ that a particular person has committed, is committing, or is about to commit a crime.” (Berkemer, supra, 468 U.S. at p. 439, italics added; accord Clair, supra, 2 Cal.4th at p. 679; People v. Salinas (1982) 131 Cal.App.3d 925, 935–936; People v. Manis (1969) 268 Cal.App.2d 653, 669.) Here, Officer Tedesco already had probable cause to arrest Ariza by the time he began questioning him. (See Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1045 [“Information provided by a crime victim . . . can establish probable cause if the information is sufficiently specific to cause a reasonable person to believe that a crime was committed and that the named suspect was the perpetrator”], disapproved on other grounds by Leon v. County of Riverside (2023) 14 Cal.5th 910, 930–931.) Ruling out investigatory questioning as justification for the lack of Miranda warnings, we turn to the various factors in order to determine 13 whether the interrogation was custodial. Reviewing the various circumstances leading up to and during Officer Tedesco’s questioning of Ariza, there are some that weigh against a custodial finding. All police officer contact with Ariza took place in a public park where Ariza had been when officers arrived, his family was nearby when the questioning took place, and he was not handcuffed or otherwise physically restrained. In addition, as the trial court found, the tone of Officer Tedesco’s questioning was calm and nonaggressive, and he did not make accusations against Ariza or use interrogation techniques designed to pressure Ariza. At the same time, other circumstances lean toward a finding of custody. Through the entirety of what took place at the park, Ariza was outnumbered by the officers. He was initially approached by two officers, and both of those officers stood immediately next to him and Officer Tedesco through the entirety of the questioning. Each officer arrived in a marked patrol vehicle, was dressed in full uniform, and had weapons on their person. In the initial search of Ariza for weapons, the officers removed Ariza’s wallet, which contained his identification, and it remained in the officers’ possession thereafter. Contrary to the trial court’s finding that there was no restraint on Ariza’s freedom or movement, it is undisputed Officer Elliott told Ariza he could not leave and directed him to sit on the bumper of one of the patrol vehicles while they waited for Officer Tedesco to arrive to talk to him. Both officers remained near Ariza, with at least one officer standing immediately next to him, during the entirety of the roughly five minutes they waited for Officer Tedesco to arrive. When Officer Tedesco arrived, he did not convey to Ariza anything different about his ability to leave.

14 Further, while Officer Tedesco initially began with a few open- ended questions and questions following up on information provided by Ariza, the inquiry quickly shifted to a more officer-led questioning style targeting specific details. Officer Tedesco stood about a foot or two away from Ariza during the questioning, while Ariza remained seated on the bumper of the patrol vehicle. And Ariza was arrested at the end of the questioning. Viewing the circumstances as a whole, we conclude the atmosphere was such that “‘a reasonable person would have experienced a restraint tantamount to an arrest.’” (Saldana, supra, 19 Cal.App.5th at p. 455.) Because Ariza was subjected to a custodial interrogation without first being provided Miranda warnings, the trial court erred in admitting his statements to Officer Tedesco. II. SEIBERT AND HARMLESS ERROR After Ariza was formally arrested and taken to the police station, two other officers administered Miranda warnings before conducting another interrogation. Ariza contends the statements he made during that second interrogation should have been suppressed pursuant to Seibert, supra, 542 U.S. 600. The Attorney General counters that (1) Ariza forfeited this argument by failing to challenge the admissibility of the warned statements or raise Seibert in the trial court, (2) the second interrogation did not violate Seibert, and (3) any error was harmless beyond a reasonable doubt. We agree Ariza forfeited his Seibert claim by failing to raise it in the trial court. (See Evid. Code, § 353, subd. (a).) Even if we were to consider the issue, Ariza’s argument fails on the merits. In Oregon v. Elstad (1985) 470 U.S. 298 (Elstad), the United States Supreme Court “held that ‘a suspect who has once responded to 15 unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.’ Instead, as long as both the initial unwarned statement and the subsequent warned statement are voluntary, the warned statement may be deemed the product of a defendant’s ‘rational and intelligent choice’ to confess and so is admissible.” (People v. Krebs (2019) 8 Cal.5th 265, 307 (Krebs).) A couple decades later, Seibert qualified the general rule set forth in Elstad. In Seibert, an officer “testified that he made a ‘conscious decision’ to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question ‘until I get the answer that [the person being interrogated] already provided once.’” (Seibert, supra, 542 U.S. at pp. 605–606 (plur. opn.).) A divided Supreme Court held the defendant’s postwarning statements were inadmissible. (Id. at pp. 617, 622.) Justice Kennedy’s concurring opinion, which controls because of the split nature of the decision (see People v. Camino (2010) 188 Cal.App.4th 1359, 1370 & fn. 5), explained that if such a “deliberate two-step strategy [was] used, postwarning statements . . . related to the substance of prewarning statements must be excluded unless curative measures [were] taken before the postwarning statement [was] made.” (Seibert, at p. 622 (conc. opn. of Kennedy, J.).) Curative measures, such as a substantial break in time and circumstances, “should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver.” (Ibid.) Here, there is no evidence law enforcement used a deliberate two- step strategy. “[S]imply because an officer could have given an advisement earlier is not enough to show that [they] delayed ‘in a calculated way to undermine the Miranda warning.’” (Krebs, supra, 8 Cal.5th at p. 312.)

16 Additionally, unlike the interrogations in Seibert, the two interrogations in this case cannot be fairly described as “parts of a continuum” (Seibert, supra, 542 U.S. at p. 617 (plur. opn.)) without “curative measures” (id. at p. 622 (conc. opn. of Kennedy, J.)). While Officer Tedesco conducted the first interrogation, two other officers conducted the second interrogation. The former took place at the park, and the latter took place later the same day at the police station following Ariza’s formal arrest. Additionally, there is no evidence of communication between the officers before the second interrogation about the substance of Ariza’s unwarned statements to Officer Tedesco. Ariza’s failure to demonstrate that the trial court erred in admitting the warned statements leads us to conclude the error in admitting the unwarned statements is harmless. (People v. Sims (1993) 5 Cal.4th 405, 447 [confession held inadmissible for being obtained in violation of Miranda is subject to harmless error standard under Chapman v. California (1967) 386 U.S. 18, 24].) In light of P.M.’s testimony, Ariza’s properly admitted warned statements, and expert testimony concerning the psychological effects of sexual abuse by a family member on a victim, the record demonstrates “‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” (People v. Elizalde (2015) 61 Cal.4th 523, 542.)

17 DISPOSITION The judgment is affirmed.

DELANEY, ACTING P. J.

WE CONCUR:

SERVINO, J.

SCHWARM, J.* *Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.