P. v. Audinette

Filed 3/29/17 P. v. Audinette CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
BRANDON DION AUDINETTE
et al.,
Defendants and Appellants.
B267258
(Los Angeles County
Super. Ct. No. MA064178)
APPEALS from judgments of the Superior Court of Los
Angeles County. Daviann L. Mitchell, Judge. Affirmed with
directions.
David McNeil Morse, under appointment by the Court of
Appeal, for Defendant and Appellant Brandon Dion Audinette.
Kevin D. Sheehy, under appointment by the Court of
Appeal, for Defendant and Appellant Xavier Gage Gaither.
Kamala D. Harris, Attorney General, Gerald Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson, Shawn McGahey Webb,

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Theresa A. Patterson, and David W. Williams, Deputy Attorneys
General, for Plaintiff and Respondent.
____________________________________
Defendants and appellants Brandon Dion Audinette
(Audinette) and Xavier Gage Gaither (Gaither)1 appeal from
judgments entered after they were convicted of conspiracy to
murder, attempted murder, and shooting at an inhabited
dwelling. They contend that the trial court erred in failing to
give a sua sponte jury instruction on heat of passion, and that the
court’s conspiracy instructions erroneously included a definition
of implied-malice murder. Gaither further contends that his
sentence violated the Eighth Amendment to the United States
Constitution, as well as article I, section 17, of the California
Constitution. Gaither also asks that we correct clerical error in
the abstract of judgment. We agree that the jury instruction
regarding implied-malice murder was given in error, but find
beyond a reasonable doubt that the error was harmless. We
correct clerical errors in both defendants’ abstracts of judgment,
but finding no merit to defendants’ remaining contentions, we
affirm the judgments.
BACKGROUND
Count 1 of a second amended information alleged that
defendants conspired with another to commit murder, in
violation of Penal Code section 182, subdivision (a)(1).2 In
count 2, defendants were charged with attempted murder of
Daiveon Stone (Stone), and in count 3, with the attempted
murder of Seville Garner (Garner), in violation of sections 187
1 We refer to Audinette and Gaither individually by their last
names and collectively as defendants.
2 All further statutory references are to the Penal Code
unless otherwise indicated.

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and 664. The information alleged that both attempted murders
were committed willfully, deliberately, and with premeditation.
Count 4 charged defendants with shooting at an inhabited
dwelling, in violation of section 246. The information alleged as
to all counts, that the crimes were committed for the benefit of, at
the direction of, and in association with a criminal street gang,
with the specific intent to promote, further and assist in criminal
conduct by gang members, within the meaning of section 186.22,
subdivision (b), and that a principal personally used a firearm
with the meaning of section 12022.53, subdivisions (b), (c), and
(e)(1). Defendants were jointly tried, and the jury found them
both guilty of counts 1, 2, and 4, as charged, and found true the
special allegations. Defendants were found not guilty of count 3.
On September 14, 2015, the trial court sentenced Audinette
to 25 years to life as to count 1, plus a 10-year firearm
enhancement pursuant to section 12022.53, subdivision (b). As to
count 2, the court sentenced him to life in prison, with a
minimum parole eligibility period of 15 years, plus 20 years for
the firearm enhancement of section 12022.53, subdivision (c), and
stayed the sentence pursuant to section 654. As to count 4, the
court sentenced Audinette to life in prison, with a minimum
parole eligibility period of 15 years, and stayed the sentence
pursuant to section 654. Audinette received 412 days of
combined presentence custody credit, and was ordered to pay
mandatory fines and fees.
On October 20, 2015, the trial court sentenced Gaither to
25 years to life in prison as to count 1, plus a 10-year firearm
enhancement pursuant to section 12022.53, subdivision (b). As to
count 2, the court sentenced him to life in prison with a minimum
parole eligibility period of 15 years, plus a 20-year firearm
enhancement pursuant to section 12022.53, subdivision (c), and
stayed the sentence pursuant to section 654. As to count 4, the

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court sentenced Gaither to life in prison, with a minimum parole
eligibility period of 15 years, to run concurrently with the
sentence in count 1. He received 412 days of combined
presentence custody credit and was ordered to pay mandatory
fines and fees.
Defendants each filed timely notices of appeal.
Prosecution evidence3
Gang culture and the BOP-BIG rivalry
The parties stipulated that the gangs, Bloods on Point, or
“BOP,” and Bad Influence Gang, or “BIG,” are criminal street
gangs as defined in section 186.22. Sheriff Detective Richard
O’Neal, the investigating officer in this case, also testified as the
prosecution’s expert in gang culture, and in particular with
regard to the BIG and BOP gangs, having investigated the gangs
and their crimes for seven years. The area of the shootings in
this case, near Lancaster Boulevard and 5th Street, in the city of
Lancaster, was included in the territory that BOP shared with its
allied gang, the Black Menace Mafia. BIG had no defined
territory; its members were scattered throughout the Antelope
Valley. BOP’s two main rivals were BIG and another gang
closely aligned with BIG, the Front Mob. BOP’s rivalry with BIG
and Front Mob had gone on for years, but had worsened in the
year before the August 20, 2014 shooting.
At this shooting, the gunfire was directed toward an
apartment building in which Wilbur Williams, a high-ranking
BIG member lived. Bryshaun Wilson and his brother Bryan
Wilson were BOP members, and lived within a half mile of the
3 Other than two exhibits, neither defendant testified or
presented affirmative evidence.

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scene of the shooting.4 Audinette and Gaither were also both
BOP members. Audinette’s gang moniker was “Hot Handz,”
Bryshaun’s was NK Red, and Bryan’s was “Be Evil.”
Stone, one of the victims in this case, testified at trial that
he was not affiliated with any gang. He claimed that none of his
relatives were members of the BIG gang, and he denied knowing
of any rivalry with BOP. He also claimed in his police interview
that he was not a gang member, but he did admit that that he
had friends and relatives in BIG, and that it was “where [his]
people from.” He told detectives that his stepfather, known as
“Big Scam,” was the “head dude” of BIG. He also admitted being
aware of a “long beef” between BIG and BOP, and that it had “got
real hot” between the gangs over the previous two weeks; they
were “getting into it” at the local park and had had a “beef” at
Club 661.
Detective O'Neal testified that respect was an important
concept in gang culture in general, and respect was gained by
committing violent acts against the general public to instill fear
in the community. Gang members also commanded respect by
performing “hood checks,” such as by randomly asking someone,
“Where you from?” There is no right answer, and hood checks are
usually followed by violence. Yelling out the gang’s name is
similar to a hood check, and lets people know who to fear. This
action spreads the word through the neighborhood that the gang
has taken over, which also serves to frighten the residents. Fear
allows the gang to be more effective in its criminal enterprises, as
they can commit crimes without citizens calling the police or
providing information.
4 We refer to Bryshaun and Bryan by their first names to
avoid confusion.

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A “mission” in gang culture is a premeditated plan to
commit some specific type of crime for the gang, anything from
vandalism or graffiti to murder. There are commonly several
members of the gang selected to go on these missions, each with a
role to play. Typically there are three: a driver, a shooter, and a
lookout. The lookout watches for police, rival gang members or
others who might be about to shoot at them.
The shooting
Garner testified that in the late afternoon of August 20,
2014, she was sitting on the porch of her apartment building, in a
chair positioned right outside the closed front door of her
apartment. She saw a young man, later identified as Stone, walk
into the cul-de-sac where her building was located, looking upset.
He sat on the porch about 17 feet to her right. He had been there
for about three to five minutes when a car, which Garner
described as a beige Hyundai with dealer plates, passed by.
Garner heard someone yell from the car. In his later police
interview, Stone described a brand new gray Honda that had
passed him as he walked to the apartment from school.5 An
occupant of the car yelled, “BOP, BOP.”
A few minutes later, while Garner and Stone were still
seated on the porch, a white Chevrolet SUV appeared with
windows down and four African American men inside. Within
seconds, five to ten gunshots were fired from the SUV, one right
after another. Garner’s chair was struck by a bullet and fell over,
and she crawled into her apartment. One of the bullets lodged in
the interior wall of her living room after going through the
security door where Garner had been leaning before she fell.
5 As Stone was a reluctant witness at trial and answered
many questions by claiming not to remember, much of his
account appeared only in his recorded interview, which was
played for the jury.

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After the shooting stopped and the SUV left the area, Stone
went to the street, took off his shirt, looked upset, and yelled
something. Garner did not see him with a weapon. Within a few
minutes, Stone was joined by several other young men who lived
in the area and who had been outside working on a car before the
shooting. After a few minutes of conversation, Stone walked
away, and the others went back to working on the car. Sheriff’s
deputies soon arrived.
Witness Larhonda Goodie (Goodie) was about to drive her
car out of a parking lot of the church near Garner’s building,
when a white SUV blocked her way, and one of its occupants
began firing a gun. She did not remember much at trial, but
Deputy Sheriff Jason Goedecke was at the scene soon after the
shooting. Goodie told the deputy that the white SUV was
travelling about five miles per hour as it passed her. A young
African-American man holding a black handgun was hanging out
of the passenger side window of the SUV as it was being driven
by a second African-American man. She then heard five to six
gunshots. As the SUV went by, the gunman pointed backward,
somewhat behind him, toward the apartment building. Goodie
then saw a few or a couple male blacks chasing the SUV which
had sped up. One of them held a silver handgun.
Another witness, Linda Lee, was walking with her
daughter and grandchildren on Lancaster Boulevard in front of
the same church, when she heard a gunshot, turned toward the
sound, and saw more gunshots emanating from an older model
white SUV, travelling slowly just across the street from her. Lee
was able to observe the driver as well as the front passenger,
both African-American men with short hair. The gunman was
the front passenger. His arm was extended from the car, out of
the front passenger window, and he was firing straight ahead
toward the apartments. She saw smoke come from the gun when

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he fired. After firing, he looked in her direction for a second, and
then the SUV was driven out of view.
Deputy Sheriff Benjamin Tanner and his partner arrived
on the scene within minutes of the shooting. They detained
Stone and a companion after observing them running from the
area. Stone was interviewed and released later, after Garner
identified his photograph as the victim who had been on the
porch.
Identification of the defendants
Shortly after the shooting, Deputy Carter and his partner
found a white SUV about a quarter mile away, parked on
Sancroft Avenue, near Bryshaun’s home. When Deputy Carter
looked into the SUV he saw a black and red Chicago Bulls hat on
the front passenger floorboard, with a handgun partially sticking
out from under the hat. Deputies also found a brand new Kia
automobile parked near the home, which has a similar body style
to that of a Honda.
Deputies conducted field showups for the witnesses.
Goodie was taken to Sancroft Avenue where she identified
Audinette. When Audinette turned to show his profile, Goodie
said, “Yep, that’s him. He was the driver.” She was then asked
to view the white SUV, which she identified as the car involved in
the shooting. She said, “That’s the vehicle. I’m sure.” Deputy
Goedecke then took her to a showup at another location, where
she did not make an identification. Gaither was not in any of the
field showups. Lee participated in a field showup and identified a
person she thought she recognized, but later thought she had
been mistaken.
Detective O'Neal spoke to witnesses and showed them
several photographic lineups. Lee circled two photographs of
Gaither, and wrote next to one that she was 85 percent certain he

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was the shooter.6 The day after the shooting, Goodie circled a
photograph of Audinette, and wrote that she was 85 percent
certain that he was the driver. When Detective O'Neal showed
Goodie more photographs a week or two later, she circled two
photographs of Gaither and wrote, “looks familiar.” When he
showed her a profile view of Audinette, Goodie was 90 percent
certain that he was the driver.7
Forensic evidence
Deputy Tanner found five bullet holes in houses near the
shooting and he recovered 10 shell casings in the street, spread
along 30 to 50 feet. In addition to the baseball cap and gun,
deputies recovered several other items from the white SUV,
including a knit glove. DNA matching Gaither’s was found inside
and on the exterior of the glove, as well as on the rear passenger
side interior door handle.
A gunshot residue (GSR) test on Stone’s hand performed
about 30 to 45 minutes after the shooting tested positive.
Audinette was taken into custody after the shooting, and
Detective O’Neal performed a GSR test on his hand. The GSR
test was positive. Trace evidence analyst Joseph Cavalieri
testified that the presence of GSR on a person’s hand meant he
could have fired or handled a gun, been next to someone who
fired a gun, or touched a surface with gunshot residue on it.
6 When asked at trial, Lee claimed not to see anyone in the
courtroom who was in the Tahoe during the shooting, and then
started crying and said she was afraid to testify. However, when
the prosecutor showed her the photographic lineup with Gaither’s
photograph in it, she circled the photograph with her finger.
7 In their briefs, both Gaither and respondent refer to
photographic and other evidence admitted at trial, but neither
has caused any exhibits to be transmitted to this court.

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Since Gaither was not apprehended until weeks after the
shooting, he was not checked for gunshot residue.
The parties stipulated that a criminalist examined the
semiautomatic handgun recovered from the white SUV and the
10 shell casings found in the street; found the gun to be
functional; and determined that all 10 casings had been ejected
from that gun.
Facebook and text messages
Detective O'Neal searched Audinette’s and Gaither’s
Facebook and cell phone data. At trial, he read messages found
in the data and explained some of the gang jargon used in the
messages.
Four days before the shooting, Audinette received the
message, “Paper Boy got shot last night.” A few seconds later, he
received, “And little E, his bro,” and a few seconds after that,
“FMG BIG K did it.” Detective O'Neal explained that “Paper
Boy” was the BOP gang moniker of a person who was shot
outside Club 661 that night. FMG meant Front Mob Gangsters,
the Antelope Valley gang closely aligned with BIG, and that Big
K was the moniker of a Front Mob member.
Beginning in the midmorning on August 20, the day of the
shooting, Audinette exchanged text messages with NK Red
(Bryshaun), in which they discussed doing a “put on” later that
day. Detective O’Neal explained that a put on was a way to
initiate a new member into the gang. Under this method of
joining a gang, the prospective member must commit a crime,
referred to as “putting in work,” at the gang’s direction, and must
be accompanied by higher ranking gang members.
At 10:33 a.m., Bryshaun texted, “We$t BXPin Blxxd WY@?”
Detective O’Neal explained that Blood gang members often use
the letter X in place of O because O was too similar to the letter
C, which was associated with Crip gangs, whom they disliked.

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This text message referred to the Westside clique of the BOP
gang, and was asking Audinette where he was then located. The
two exchanged the following texts over the next few minutes:
Audinette: “Whoop, I’m at the pad,” and, “West BOPing
killa”;
Bryshaun: “Kum put this nigguh on tha set with me”;
Audinette: “Fahso. Let’s do it at Bam housek or somethin’.
Blood got to meet the homies.”
Bryshaun: “Ok, oh, Kylila, he say he know Bam already.
The nigguh know Bam’s government name and all the shit,
Blxxd. He said he been telling Bam he want he put on.”
Detective O’Neal testified that Bam was the gang moniker
of a BOP member, and that Audinette’s next reply to Bryshaun’s
text (that the prospective member already knew Bam) was an
explanation of the rules of a put on.8 Audinette explained: “But
how it works is blood. One the originals gotta be there and who
he gonna be under gotta be there, basically blood. Homies got to
be there cause we caint . . . have niggaz . . . running around
banging the set but not know anybody. You feel me? Wy@ . . .
Come get me blood. You with Evil [Bryan].”
Bryshaun responded to Audinette’s explanation, “Whxxp, I
feel you. I’m at school. I get out in ten minutes. And Evil gone
whxxp me. Then I’m a bang yo line and I say give Blxxd his own
name because NK’s and HH’z [Audinette] there’s only one of a
kind type niggaz, but I think we should put Blood on.”
8 Bryshaun was a newer BOP member, and had joined the
gang under the sponsorship of an older brother, a high-ranking
member of the gang.

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At 12:46 p.m., Gaither texted to a “Da Goer” or “GB”: “We
finna do a put on.” GB replied: “Who? U N it.” The reply on
Gaither’s phone was “Yup. ND and some nigga. U my little
homie. I gotta B there.” GB replied: “LOL.”
About a half hour before the shooting, Audinette sent out
the following message: “Nun posted wit my killahz on 3rd.”
Detective O'Neal explained that “3rd” referred to Third Street,
one of the areas that BOP shares with the Black Menace Mafia.
On August 21, the day after the shooting, Gaither posted on
Facebook the following message: “Kaught nigga slippin, put a
hole in his life. He slipped on dat ice and got froze last night.”
Detective O’Neil explained that to a gang member, being caught
“slippin” meant you made a mistake and were found unprotected
(i.e., alone or unarmed) walking on the street or in a rival gang’s
neighborhood. He further testified that, “Put a hole in his life”
meant “I shot him.”
Also on August 21, Gaither exchanged text messages with
his father. Gaither wrote, “Dad, I’m in Cklass [Crip killer class].
Text me.” In response to a text from his father asking, “What’s
up?,” Gaither wrote, “Someone got shot in the face right in front
of me yesterday.” Gaither’s father asked, “Where?” Gaither
replied, “On da East [east side of Lancaster Boulevard].”
Gaither’s father then asked, “Why?” Gaither replied, “Enemies.”
Gaither’s father then wrote, “So it could have been you?” Gaither
replied, “No, other way. I’m gonna call you when I get out of
cklass.” Detective O'Neal explained that “ck” stood for “crip
killer.”
Later on August 21, while Audinette was in custody,
Gaither exchanged Facebook messages with a person identified
as “Miesha Tauhpretty Baa.” Gaither wrote, “I know, I know.
Hot Hands my nigga though. And if anything happened, me and
the homies gon. Look out for Hot Hands, baby, on me.” Gaither

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also wrote, “They is tryna get Hot Hands with some shit though.
No lie. But they got no proof I was there.”
Audinette was released from custody two days after the
shooting. On August 23, after Audinette’s release, Gaither and
his father exchanged text messages. The father asked, “Have you
heard any more? Have you heard anything?” Gaither then wrote,
“Yep, everybody got out. No problems.” That same day, Gaither
exchanged messages with someone identified as “Babyhussle
Ler.” Babyhussle Ler wrote, “Aye, one of yo homies got killed or
shot in Lanbaster.” Gaither replied, “Nope on BOP. Them was
Bigeez. U know how we do it. On 5th ND Blvd.” A minute later,
Gaither wrote, “Exacktly on BOP. They get knocked down.”
Detective O’Neal explained that the boulevard mentioned in the
text was Lancaster Boulevard. Detective O’Neal explained that
members of “Blood” gangs often used B in place of C because the
letter C signified Crip gangs; thus, Lancaster was spelled,
“Lanbaster.”
On August 26, 2014, after Audinette had been released
from custody, Detective O’Neal received some text messages from
him. Detective O’Neal knew Audinette, as he had had numerous
prior contacts with him, had a very good rapport with him, and
Audinette had provided information in the past. They
communicated frequently by cell phone, and Detective O’Neal
had his number stored in his contacts. On August 26, 2014,
Audinette sent him the following texts: “Bryshaun’s brother said
he left a gun under my hat though”; “I left it in the truck the
night before”; and a half hour later, “But I’m upset because my
hat was in the truck, Brian said that’s where the gun was left
under my hat.”
Gang crime
The prosecutor gave Detective O’Neal a hypothetical
question which mirrored the facts in evidence, and elicited the

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detective’s opinion that the hypothetical crime was committed for
the benefit of, at the direction of, and in association with a
criminal street gang in furtherance of the gang and to promote
the gang. Detective O’Neal added that in his opinion, it was a
stereotypical gang drive-by shooting.
DISCUSSION
I. Heat of passion
Gaither contends that the trial court erred in failing to sua
sponte instruct the jury on attempted voluntary manslaughter
based on sudden quarrel or heat of passion, as a lesser included
offense of attempted murder. Audinette joins in Gaither’s
argument without separate discussion.9
A trial court must instruct sua sponte on lesser included
offenses that are supported by substantial evidence. (People v.
Licas (2007) 41 Cal.4th 362, 366.) “[T]he ‘substantial’ evidence
required to trigger the duty to instruct on such lesser offenses is
not merely ‘any evidence . . . no matter how weak’ [citation], but
rather ‘“evidence from which a jury composed of reasonable
[persons] could . . . conclude[]”’ that the lesser offense, but not the
greater, was committed. [Citations.]” (People v. Cruz (2008) 44
Cal.4th 636, 664; see also People v. Breverman (1998) 19 Cal.4th
142, 154, 162 (Breverman).)
“Manslaughter is a lesser included offense of murder.
[Citations.] The mens rea element required for murder is a state
of mind constituting either express or implied malice. A person
who kills without malice does not commit murder. Heat of
passion is a mental state that precludes the formation of malice
and reduces an unlawful killing from murder to manslaughter.”
9 As Audinette has failed to provide a particularized
argument in support of his claimed right to relief on this point,
we confine our discussion to Gaither’s arguments. (See People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364.)

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(People v. Beltran (2013) 56 Cal.4th 935, 942, fn. omitted.)
Similarly, “the offense of attempted murder is reduced to the
lesser included offense of attempted voluntary manslaughter
when the defendant acted upon a sudden quarrel or in the heat of
passion. [Citations.]” (People v. Millbrook (2014) 222
Cal.App.4th 1122, 1137.)
“Heat of passion arises if, ‘“at the time of the killing, the
reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.”’
[Citation.] Heat of passion, then, is a state of mind caused by
legally sufficient provocation that causes a person to act, not out
of rational thought but out of unconsidered reaction to the
provocation. While some measure of thought is required to form
either an intent to kill or a conscious disregard for human life, a
person who acts without reflection in response to adequate
provocation does not act with malice.” (People v. Beltran, supra,
56 Cal.4th at p. 942.) “When relying on heat of passion as a
partial defense to the crime of attempted murder, both
provocation and heat of passion must be demonstrated.
[Citation.]” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.)
“Heat of passion has both objective and subjective
components. Objectively, the victim’s conduct must have been
sufficiently provocative to cause an ordinary person of average
disposition to act rashly or without due deliberation and
reflection. [Citation.]” (People v. Enraca (2012) 53 Cal.4th 735,
759.) “To satisfy the subjective element of this form of voluntary
manslaughter, the accused must be shown to have killed while
under ‘the actual influence of a strong passion’ induced by such
provocation [Citation.]” (People v. Moye (2009) 47 Cal.4th 537,
550.)

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Gaither posits two possible bases for finding that the crime
was committed in a heat of passion. First, he argues that a
member of his gang was killed by a member of Stone’s gang a few
days earlier, thus providing sufficient provocation, given the
violent rivalry between the two gangs. Second, Gaither points to
evidence that Goodie saw three African-American men chasing
the white van after the shooting, and one was holding a silver
pistol. He notes that Stone’s hand tested positive for gunshot
residue about 45 minutes after the shooting, that Stone admitted
in his interview that he had handled a silver gun earlier that day,
and that Detective O’Neal testified that someone had identified
Stone as the shooter. Defendant speculates that Stone or another
BIG gang member recognized BOP members driving through
BIG’s neighborhood and fired at the white SUV before the BOP
gunman in the SUV fired or as he fired, causing the BOP gunman
to fire back or continue to fire in a heat of passion.
Even if the killing of Gaither’s fellow gang member by a
rival gang four days before could be considered sufficient
provocation, it remains that a crime is not committed in the heat
of passion unless the provocative conduct was shown to have been
engaged in or reasonably believed by the defendant to have been
engaged in by the victim. (People v. Lee (1999) 20 Cal.4th 47, 59.)
Gaither presented no evidence here that Stone was involved in
the killing of a BOP gang member, or that Gaither reasonably
believed him to be involved in that crime. Indeed, there was no
evidence of the identity of the BOP member’s killer at all.
Gaither’s second scenario, like the first, is speculation, not
substantial evidence. “‘Speculation is an insufficient basis upon
which to require the trial court to give an instruction on a lesser
included offense.’ [Citation.]” (People v. Sakarias (2000) 22
Cal.4th 596, 620.) If Gaither fired first from the moving vehicle,
he was the initial aggressor, and may not reasonably claim he

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fired back in a heat of passion as the vehicle moved away. (See
People v. Johnston (2003) 113 Cal.App.4th 1299, 1312.) There
was no evidence that if Stone fired, he fired first, or that he was
anywhere but seated on the porch of the apartment building
when Gaither fired from the white SUV. Garner testified that
Stone was sitting there when the gunfire erupted from the street,
and that she did not see Stone with a weapon. Contrary to
Gaither’s speculation, the evidence demonstrated a “stereotypical
gang drive-by shooting.” And as respondent notes, the objective
standard is not measured by the reaction of a reasonable gang
member. (People v. Enraca, supra, 53 Cal.4th at p. 759.)
Turning to the subjective component of heat of passion,
Gaither argues that in reaction to the actual or threatened attack
with a silver revolver by Stone or another BIG gang member with
him, the white van shooter panicked and fired rashly. Gaither’s
argument is based upon the same speculation which failed to
support the objective component. His attempt to draw a
comparison with the facts of Breverman, also fails. There,
according to the defendant’s account to the police, a mob of armed
young men with hostile intent trespassed onto the defendant’s
property, threatened him, challenged him to fight, and then
smashed his vehicle, which was parked near the front door,
causing the defendant to fire at the intruders in fear and panic as
they approached the front door and again as they fled.
(Breverman, supra, 19 Cal.4th at pp. 150-151, 164.) A defense
witness in the house corroborated the defendant’s version and
testified that she “‘absolutely’ was in ‘fear’ [and that] defendant
yelled ‘call 911.’” (Id. at p. 152.) Thus, the defendant’s own
statements and those of a witness provided evidence that the
defendant’s “reason was actually obscured as the result of a
strong passion.” (Id. at p. 163, italics added.)

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Here, there was no direct evidence of the shooter’s
subjective state of mind, such as presented in Breverman.
Evidence of the defendant’s state of mind is usually found in his
own testimony. (See People v. Sinclair (1998) 64 Cal.App.4th
1012, 1016-1019.) However, Gaither did not testify; nor did he
give statements to law enforcement or present any witnesses as
in Breverman. Circumstantial evidence of Gaither’s state of mind
suggested that he intended to benefit his gang by going on a
mission as the gunman of his team to commit a drive-by shooting
in a neighborhood where one or more rival BIG gang members
lived. There was no evidence that he rashly reacted in panic to
an unprovoked attack as he and two or three fellow gang
members just happened to be passing through.
We conclude that the trial court had no duty to instruct
with regard to heat of passion. If the trial court had erred in
failing to so instruct, the test of prejudice would be that of People
v. Watson (1956) 46 Cal.2d 818, 836. (People v. Beltran, supra, 56
Cal.4th at p. 955.) Here, the jury expressly found that Gaither
attempted to murder Stone willfully, deliberately and with
premeditation, and that Gaither did so with the specific intent to
promote, further and assist in criminal conduct by gang
members. “This state of mind, involving planning and deliberate
action, is manifestly inconsistent with having acted under the
heat of passion.” (People v. Wharton (1991) 53 Cal.3d 522, 572.)
Indeed, the jury was instructed that “[a] decision to kill made
rashly, impulsively, or without careful consideration is not
deliberate and premeditated.” We agree with respondent that
given such findings, Gaither suffered no prejudice from the
absence of a voluntary manslaughter instruction.
II. Conspiracy to commit murder
Audinette contends that the trial court erroneously
instructed the jury that he could be found guilty of conspiracy to

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commit murder based on implied malice, without a finding of
intent to kill.
“[T]he crime of conspiracy to commit murder requires a
finding of unlawful intent to kill, i.e., express malice, and
. . . conspiracy to commit murder cannot be based on the
underlying criminal objective or target offense of second degree
implied malice murder.” (People v. Cortez (1998) 18 Cal.4th 1223,
1228-1229, citing People v. Swain (1996) 12 Cal.4th 593, 603
(Swain).)
The trial court instructed the jury that in order to prove
conspiracy to commit murder, the People had to prove that the
“defendant intended to agree and did agree with the other
defendant or Bryshaun Wilson [to] commit 187 P.C., murder [and
that] the defendant and one or more of the other alleged members
of the conspiracy intended that one or more of them would
commit 187 P.C., murder.” Requiring an intent to murder was
correct so far as it went, particularly in conjunction with the
instruction regarding intent to kill as an element of attempted
murder, as “all conspiracy to commit murder is necessarily
conspiracy to commit premeditated and deliberated first degree
murder.” (People v. Cortez, supra,18 Cal.4th at p. 1237.) The
instruction was not required to specify first degree murder. (Id.
at pp. 1238-1239.) However, the court also instructed the jurors
that in deciding whether defendant conspired to commit murder,
they should refer to separate instructions defining murder.
Those instructions stated that murder can be based on either
express or implied malice, and explained that express malice
meant the intent to kill, while implied malice required only the
intent to commit a act dangerous to human life with conscious
disregard of the danger.
Respondent agrees that it was error to permit a conviction
of conspiracy to commit murder to be based on implied malice.

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(See Swain, supra, 12 Cal.4th at p. 607.) But respondent
contends that the error was harmless beyond a reasonable doubt
under the test of Chapman v. California (1967) 386 U.S. 18, 24,
the harmless error test traditionally applied to misinstruction on
the elements of an offense. (Swain, supra, at p. 607.)
Respondent reasons that in convicting Audinette of attempted
murder and finding that he acted with premeditation and
deliberation, the jury necessarily determined that he harbored
intent to kill; and respondent argues that such a finding is
inconsistent with the theory of implied malice, which assumes
that the defendant did not intend for his actions to result in
death. (See Swain, at pp. 602-603.)
Audinette counters that the jury did not find that he
personally acted with premeditation and deliberation, but rather,
that the crime was committed with premeditation and
deliberation. He argues that as the evidence showed he was the
driver, not the shooter, he was convicted as an aider and abettor.
He further argues that because an aider an abettor need not have
the same mental state as the actual perpetrator, the jury in this
case was not required to find that he harbored an intent to kill.
Audinette then paraphrases that part of the conspiracy
instruction which told the jury that each conspirator is liable not
only for the crime he conspired to commit, but also for any
unintended crime which was the natural and probable
consequence of the original plan. He concludes that the jury
could have convicted him of the separate attempted murder
charge based upon a finding that he conspired to commit implied
malice murder, and thus did not have the intent to kill.
Despite such an abstract possibility, a review of the entire
record and the instructions given reveal “beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.” (Neder v. United States (1999) 527 U.S. 1, 15-

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16.) Although the aider and abettor does not necessarily have the
same mental state as the actual perpetrator when he aids and
abets a general intent crime, attempted murder requires the
specific intent to kill. (People v. Lee (2003) 31 Cal.4th 613, 623-
624.) “Thus, to be guilty of attempted murder as an aider and
abettor, a person must give aid or encouragement with
knowledge of the direct perpetrator’s intent to kill and with the
purpose of facilitating the direct perpetrator’s accomplishment of
the intended killing -- which means that the person guilty of
attempted murder as an aider and abettor must intend to kill.”
(Id. at p. 624, citing People v. McCoy (2001) 25 Cal.4th 1111,
1118.) Here, the trial court correctly and thoroughly instructed
the jury that intent to kill was required for aider and abettor
liability. In relevant part, the court read CALCRIM No. 401, as
follows: “Someone aids and abets a crime if he or she knows of
the perpetrator’s unlawful purpose and he or she specifically
intends to and does, in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator’s commission of that crime.” (Italics
added.) Knowing of the perpetrator’s specific intent to kill and
intending to aid in that crime is the equivalent of sharing that
specific intent to kill. (See People v. Williams (1997) 16 Cal.4th
635, 676.)
With regard to Audinette in particular, the court instructed
that to prove Audinette guilty of a crime based on aiding and
abetting that crime, the People were required to prove, among
other things, that “[Audinette] knew that the perpetrator
intended to commit the crime” and he “intended to aid and abet
the perpetrator in committing the crime.” (Italics added.)
Immediately following CALCRIM No. 401, the trial court defined
attempted murder, including the requirement the People prove
that the defendant intended to kill the person he attempted to
kill.

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Thus, the jury was effectively instructed that the
perpetrator must have harbored an intent to kill, and that
Audinette must have shared that same intent to kill. Further,
our review of the whole record reveals overwhelming evidence
that he did, in fact, harbor an intent to kill at the time he
conspired to commit murder, and no substantial evidence
suggesting that Audinette did not harbor an intent to kill. The
jury found that at the time of entering into the conspiracy,
Audinette intended to promote, further, and assist in criminal
conduct by gang members. Four days before, a fellow gang
member had been shot, and Audinette had reason to believe that
a member of the Front Mob gang, BIG’s affiliate, had committed
that crime. On the day of the shooting in this case, Audinette
and Bryshaun discussed doing a “put on” later in the day with
other members of the gang. BOP members in the gray Honda
verbally confronted Stone shortly before the conspirators
attempted to kill him. Audinette then drove the white SUV to
Stone’s location with a semiautomatic handgun in the vehicle,
and slowed to five miles per hour while Gaither fired the gun 10
times in what the jury found to be a premeditated and deliberate
attempt to kill Stone.
This was a stereotypical mission for the benefit of the gang
to commit a drive-by shooting at a rival. Such a gang mission is a
premeditated plan to commit a specific crime for the gang,
sometimes murder. The gang members are selected and each is
assigned a role, such as driver, shooter, or lookout. The lookout
watches for police, rival gang members or others who might be
about to shoot at them. Such a crime is thus carefully planned.
Each gang member knows his role. The most reasonable
inference was that before starting out on the mission, each
member knew and intended that Gaither’s role was to spray

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Stone with semiautomatic gunfire in such a manner that Stone
would not survive.
Finally, at no time did the prosecutor argue that the
defendants could be convicted of conspiracy to commit implied-
malice murder or that the conspirators conspired to commit some
crime other than premeditated murder.
We conclude beyond a reasonable doubt that the error was
harmless.
III. Cruel and/or unusual punishment
A. Eighth Amendment
Gaither contends that a mandated prison term of 35 years
to life for a crime committed as a juvenile is cruel and unusual.
He argues that his sentence must be reversed and remanded for
consideration of youth-related factors suggested in Graham v.
Florida (2010) 560 U.S. 48 (Graham), Miller v. Alabama (2012)
567 U.S. 460 [132 S.Ct. 2455] (Miller), and People v. Caballero
(2012) 55 Cal.4th 262 (Caballero).10
The United States Supreme Court has held that the Eighth
Amendment prohibits sentencing a juvenile to life without parole
(LWOP) for a nonhomicide offense (Graham, supra, 560 U.S. at p.
74), or automatically sentencing a juvenile to LWOP for a
homicide offense. (Miller, supra, 132 S.Ct. at p. 2461.) Graham
held that a juvenile offender must be given a “meaningful
opportunity to obtain release based on demonstrated maturity
and rehabilitation.” (Graham, supra, at p. 75.) In line with that
10 In general, courts should consider the “hallmark features of
youth,” such as “immaturity, impetuosity, and failure to
appreciate risks and consequences,” and should do so in the
context of the defendant’s individual circumstances such as
family environment and peer pressure. (Miller, supra, 132 S.Ct.
at p. 2468; see Graham, supra, 560 U.S. at p. 75; Caballero,
supra, 55 Cal.4th at pp. 268-269.)

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holding, the California Supreme Court extended the reasoning of
Graham and Miller to the “functional equivalent” of LWOP,
which it defined as any “term of years with a parole eligibility
date that falls outside the juvenile offender’s natural life
expectancy.” (Caballero, supra, 55 Cal.4th at pp. 266-268.)
Gaither was sentenced to the term mandated by statute for
conspiracy to commit first degree murder, 25 years to life, plus a
mandatory consecutive 10-year firearm enhancement pursuant to
section 12022.53, subdivision (b). (See § 182, subd. (a)(1).) He
was 17 years 6 months old when he committed these crimes, 18
years 8 months old at the time he was sentenced, and was given
412 days of presentence custody credit. Without considering any
conduct credits he might receive in prison, Gaither would be
eligible for parole by the age of 52.
Gaither does not contend that the age of 52 is outside his
life expectancy, and he recognizes that a similar age (47) has
been held not to be the functional equivalent of LWOP. (People v.
Perez (2013) 214 Cal.App.4th 49, 58.) Further, like the defendant
in Perez, Gaither has cited “no case which has used the [Graham-
Miller-Caballero] line of jurisprudence to strike down as cruel
and unusual any sentence against anyone under the age of 18
where the perpetrator still has substantial life expectancy left at
the time of eligibility for parole.” (Perez, supra, at p. 57, fn.
omitted.) Instead, Gaither argues that Perez was not well
reasoned, and he asks that we articulate such a rule and reverse
the sentence, remand for resentencing, and direct the trial court
to consider mitigation factors outlined in Graham, Miller, and
Caballero.
Respondent contends that Gaither has forfeited the issue
by failing to raise it below. A claim that the Eighth Amendment
requires a review of various factors must first be raised in the
trial court, or it is forfeited on appeal. (People v. Gamache (2010)

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48 Cal.4th 347, 403.) Gaither counters that his counsel raised
the issue by asking the court to apply the factors considered in
Miller. Counsel did not make such a request, but instead stated
that he thought that some of the Miller factors would apply here,
acknowledged that Miller applied to LWOP sentences, and stated
that he understood that by law, the court’s hands were tied.
Counsel did not object to the sentence as cruel or unusual or
submit a sentencing memorandum, state which Miller factors
might apply, or ask that the trial court take evidence on such
factors.
Moreover, as respondent also notes, if Miller, Graham, and
Caballero were applicable here, Gaither’s contention would
nevertheless be rendered moot by sections 3051 and 4801, which
were enacted by the Legislature to bring juvenile sentencing in
conformity with the requirements of those cases. (See People v.
Franklin (2016) 63 Cal.4th 261, 268-269 (Franklin).) Under
section 3051, subdivision (b)(3), a juvenile offender such as
Gaither, is “eligible for release on parole by the board during his
or her 25th year of incarceration at a youth offender parole
hearing, unless previously released or entitled to an earlier
parole consideration hearing pursuant to other statutory
provisions.” A sentence of 25 years to life is not the functional
equivalent to life without parole. (Franklin, supra, at p. 286.)
Gaither contends that that the United States Supreme
Court’s recent decision in Montgomery v. Louisiana (2016) 577
U.S. __ [136 S.Ct. 718], demonstrates that the California
Supreme Court erred in holding that section 3051 satisfied the
Eighth Amendment, because Montgomery held that the Miller
factors must be considered at the time of sentencing, not at some
future parole hearing. He also argues that the statute might
pass constitutional muster if it provided for parole eligibility at
15 years, and he invites this court to review scientific evidence

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supporting the establishment of such a limit. Montgomery held
that Miller’s prohibition on mandatory life without parole for
juvenile offenders applied retroactively to those sentenced prior
to Miller. (Montgomery, supra, at pp. 734-735.) Indeed, contrary
to Gaither’s contention, the court expressly clarified that the
states may remedy a Miller violation by permitting such juvenile
offenders to be considered for parole after 25 years.
(Montgomery, at p. 736.)
Regardless, the trial court did consider mitigation evidence,
such as Gaither’s age and family circumstances. The court heard
statements from Gaither’s mother and uncle, who spoke of his
character and their belief that he was innocent but immature,
and guilty only of “wrong association.” The court found that
Gaither had family support, although he had turned his back on
it. The court also found that the evidence showed Gaither to be
more culpable than the others, that he was on probation at the
time of the shooting, and that he had refused to come to court.11
Nevertheless, in consideration of Gaither’s age, the court ordered
the sentence imposed as to count 4 to run concurrently, thus
avoiding a life term with an additional 15-year parole eligibility
period.
Gaither does not suggest what additional facts, if any, the
trial court should have considered. Gaither does not contend that
the record of the sentencing hearing provided insufficient
11 Gaither was on juvenile probation after he had been found
unlawfully in possession of a firearm and ammunition. The
probation report states that Gaither’s criminality began at about
age 14 with theft and weapons violations, and that he had been a
member of the BOP gang since 2012. Gaither was in court at
sentencing, but had refused to attend for the reading of the
verdict, and deputies reported that he had challenged them to a
fight.

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information relevant to his eventual youth offender parole
hearing under section 3051, such as might be necessary to
measure his “subsequent growth and increased maturity.”
(Franklin, supra, 63 Cal.4th at pp. 268-269, 282-283; § 4801,
subd. (c).) Indeed, Gaither seeks only reversal and resentencing,
and has not asked for a remand to make a more complete record,
as afforded in Franklin. (See Franklin, at pp. 286-287.) Thus, no
remand is necessary, and as section 3051 has effectively
converted his sentence from 35 years to life, to 25 years to life, he
is not entitled to resentencing. (See Franklin, at pp. 278-279.)12
B. California Constitution
Gaither also contends that the sentence was cruel or
unusual under article I, section 17, of the California Constitution,
which prohibits “punishment [that] is grossly disproportionate to
the defendant’s individual culpability as shown by such factors as
his age, prior criminality, personal characteristics, and state of
mind.” (People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon); see
also In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).)
In Lynch, “the California Supreme Court formulated a
three-point analysis for the determination whether a sentence is
cruel or unusual: (1) the nature of the offense and the offender,
with particular regard to the degree of danger which both present
to society; (2) a comparison of the challenged penalty with the
punishment prescribed in the same jurisdiction for other more
serious offenses; and (3) a comparison of the challenged penalty
with the punishment prescribed for the same offense in other
jurisdictions. [Citation.]” (People v. Mantanez (2002) 98
Cal.App.4th 354, 359; Lynch, supra, 8 Cal.3d at pp. 425-427.)
12 At oral argument Gaither referenced recently filed People v.
Phung (Mar. 15, 2017, G051876) __ Cal.App.5th __ [LEXIS 237]
which fails to support his arguments here.

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Disproportionality need not be established in all three areas.
(Dillon, supra, 34 Cal.3d at p. 487, fn. 38.)
Because the Lynch/Dillon proportionality determination is
a fact-bound inquiry, it ordinarily may not be considered for the
first time on appeal. (People v. Ross (1994) 28 Cal.App.4th 1151,
1157, fn. 8.) Gaither did not raise the issue below, but partially
quoting People v. Partida (2005) 37 Cal.4th 428, 438, he contends
that it is cognizable on appeal as an “additional legal
consequence.” A federal due process violation may be raised for
the first time on appeal as an additional consequence of state law
error. (People v. Thornton (2007) 41 Cal.4th 391, 443-444.)
Gaither has not established an underlying state law error.
Further, he does not cite authority suggesting that such a rule
applies to a fact-based Lynch/Dillon proportionality
determination, and we have found none.
Regardless, Gaither has failed to overcome his
“‘considerable burden’ to show the sentence is disproportionate to
his level of culpability. [Citation.]” (People v. Em (2009) 171
Cal.App.4th 964, 972; see People v. Wingo (1975) 14 Cal.3d 169,
174.)
Gaither does not undertake the comparisons suggested in
the second and third Lynch categories. His discussion of the
nature of the offense and the offender is limited to an argument
that the same punishment for first degree murder and conspiracy
to commit murder was grossly disproportionate, because “[t]he
weight of the trial evidence linking him to the shooting consisted
of his association with gang members and his being in the back
seat of the white SUV while someone with darker skin in the
front passenger’s seat discharged the firearm.”13 Gaither has
13 Gaither is apparently referring to Detective O’Neal’s
testimony that when he showed photographic lineups to witness

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characterized the evidence in an attempt to minimize his role in
the crime, has disregarded the seriousness of the crime, and has
utterly failed to discuss any facts relating to the “nature of the
offender” other than his age, such as his “prior criminality,
personal characteristics, and state of mind.” (Dillon, supra, 34
Cal.3d at p. 479.)
Contrary to Gaither’s argument to the contrary, the weight
of the evidence showed that he was the shooter. His text message
sent a few hours before the shooting established that he intended
to participate in the “put on.” He bragged about his role the next
day: “Kaught nigga slippin, put a hole in his life. He slipped on
dat ice and got froze last night.” Detective O'Neal explained, “Put
a hole in his life” meant “I shot him.” Lee testified that the
shooter was in the front passenger seat, and she was not sure
that anyone was in the back seat. With 85 percent certainty, Lee
selected two photographs of Gaither from a photographic lineup
shown to her by Detective O’Neal, and identified him as the
shooter. At trial, Lee was too frightened to make a courtroom
identification, but she circled Gaither’s photograph with her
finger. Goodie told Deputy Goedecke that she saw two men in
the white SUV: the driver and the shooter. She was 90 percent
certain that Audinette was the driver, and identified two
photographs of Gaither as looking familiar.
In addition to the nature of the offense, the nature of the
offender also demonstrates a high degree of danger to society.
Lee, she identified Gaither in two of them, but as to one of the
photographs she said without further explanation, “He’s too
light.” The photographs have not been made part of the appellate
record, and unlike the jurors and the trial judge, we have not
seen Gaither or a photograph of him to assess his complexion.
Gaither’s claim that he was in the back seat during the shooting
consists of conjecture based upon the location of the glove and his
DNA in the rear.

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We reject Gaither’s suggestion that he did not harm anyone
simply because no one was physically hurt, as well as his
suggestion that the fact that no one was killed greatly diminished
the seriousness of the crime. “[T]he only offense more serious
than conspiracy to commit . . . murder is first degree murder
itself.” (People v. Williams (1980) 101 Cal.App.3d 711, 723, fn.
omitted.) Gaither conspired a premeditated murder with fellow
gang members. In furtherance of the conspiracy, he armed
himself with a semiautomatic handgun, fired multiple rounds
toward an apartment building, intending one death and risking
others, and bragged about it the next day. Gaither had been a
member of BOP gang for about two years, and was on probation
after he was found to be a minor in possession of a concealable
firearm, in violation of section 29610. He showed disrespect for
his family, the court, and law enforcement by refusing to attend
the reading of the verdicts and by challenging deputies to fight.
Gaither attempts to compare himself with the offenders in
Dillon and In re Nunez (2009) 173 Cal.App.4th 709. The
comparisons fail. In Nunez, the offender was three years younger
than Gaither, and his “‘mental functioning and behavior was
diminished beyond that typical of 14-year-old children by mental
illness, namely post-traumatic stress disorder and major
depression.’” (Nunez, at p. 733.) In Dillon, the 17-year-old
would-be robber was unusually immature, had no prior trouble
with the law, let alone involvement in a criminal street gang, and
did not intend to commit premeditated murder, as did Gaither,
but reacted to a suddenly developing situation that he perceived
as putting his life in immediate danger. (Dillon, supra, 34 Cal.3d
at p. 488.)
Gaither has not demonstrated that his sentence was
grossly disproportionate to his level of culpability, or to any

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individual characteristics beyond his age. His punishment was
thus not cruel or unusual under the California Constitution.
IV. Clerical error in abstract of judgment
Gaither requests correction of the abstract of judgment to
conform to the oral pronouncement, and respondent agrees that
the abstract should be corrected. Item 6 of the abstract states
that Gaither was sentenced to 35 years to life on counts 1 and 2
“PLUS enhancement time shown above.” The enhancements are
noted above in item 2, which show a 10-year enhancement for
those counts, imposed pursuant to section 12022.53. Thus, the
abstract could be interpreted as reflecting a sentence of 35 years
to life plus a 10-year enhancement, rather than the orally
pronounced 25 years to life plus a 10-year enhancement. Also in
both counts 2 and 4, Gather was sentenced to life with a
minimum parole eligibility of 15 years, not “35 years to life” as
marked on the abstract for count 2, nor “15 years to life on count
4” as is also recorded. We direct the corrections be made.
We note that Audinette’s abstract contains a clerical error
as well, as it states in item 1 that he was convicted of attempted
murder in count 4, although count 4 was shooting at an inhabited
dwelling, a violation of section 246. Item 5 does not reflect the
sentence on counts 2 and 4, which was life in prison with a 15-
year minimum eligibility period, although the section 654 stay is
correctly noted in item 1. We may correct clerical errors in the
abstract, and we may do so on our own motion. (See People v.
Mitchell (2001) 26 Cal.4th 181, 185-188.) We thus correct both
abstracts.
DISPOSITION
The judgments are affirmed. Item 6 of Gaither’s abstract of
judgment is corrected to reflect that the sentence imposed for
count 1 was 25 years to life plus enhancements, not 35 years to
life plus enhancements. The abstract should be further corrected

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in item 5 to show as to counts 2 and 4 a sentence of life, with a
minimum parole eligibility of 15 years. Item 1 of Audinette’s
abstract of judgment is corrected to reflect that count 4 was
shooting at an inhabited dwelling in violation of section 246, and
to add at item 5 that the sentence on each of counts 2 and 4 was
life with a minimum parole eligibility period of 15 years. The
superior court is directed to prepare amended abstracts of
judgment reflecting the corrections, and to forward certified
copies to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_________________________, Acting P. J.
CHAVEZ
We concur:
__________________________, J.
HOFFSTADT
__________________________, J.*
GOODMAN
____________________________________________________________
* Retired Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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