February 11, 2019- State v. Brown, No. A-1-CA-35598

OCR transcription for search; preserved printed pages are authoritative

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I J *APF™4 = =FiddE STA NW MX)
Court of Appeals of New Mexico

Gi Aak Ge N™W MeXICO, Filed 2/11/2019 11:07 AM
f
Plaintiff-Appellee, Al. ~L4
Mark Reynolds
v. NO. A-1-CA-35598
DAVALOUS BROWN,
wefendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF D VA ANA COUNTY

Fernando R. Macias, District Judge

Hector H. Balderas, Attorney General

Santa Fe, NM

John J. Woykovski, Assistant Attorney ~ >neral
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Tania Shahani, Assistant Appellate Defender
Santa Fe, NM

John Bennett, Assistant Appellate Defender
Albuquerque, NM

for Appellant
MEMORANDUM OPINION

Ava akEP, Judge.

{} Defendant Davalous Brown appeals his convictions for two counts of battery
upon a peace officer, in violation of NMSA 1978, Section 30-22-24(A) (1971), and

one count of resisting, evading or obstructing an officer, in violation of NMSA 1978,

1 Section 30-22-1 (B) (1981 ). Defendant raises the following issues on appeal: (1)
2 double jeopardy violation as to his two convictions for battery upon a peace officer,
3 (2) 	double jeopardy 	violation as 	to 	his 	convictions 	for 	resisting, 	evading 	or
4 obstructing an officer and battery upon a peace officer, (3) jury instruction error as
5 to one count of battery upon a peace officer, and (4) sufficiency of the evidence. We
6 conclude that Defendant's two convictions for battery upon a peace officer violate
7 the prohibition against double jeopardy. Accordingly, we remand to the district court
8 to vacate Defendant's second conviction for battery upon a peace officer. Otherwise,
9 we affirm.
10 	BACKGROUND
11 	{2} 	Because this is a memorandum opinion and the parties are familiar with the
12 	facts and procedural history of this case, we set forth only those facts that are
13 	necessary to decide the merits. As a result of a domestic dispute between Defendant
14 and Xavia Gutierrez, the mother of Defendant's child, Ms. Gutierrez obtained a
15 	restraining order and a warrant was issued for Defendant's arrest. Ms. Gutierrez
16 	devised a plan with Deputy Chase Thouvenell of the Dona Ana County Sheriffs
17 	Office to have Defendant served with the warrant. Ms. Gutierrez then contacted
18 	Defendant and had him come to her home to shower. After Defendant entered the
19 	shower, Ms. Gutierrez texted Deputy Thouvenell to come serve the warrant. While
20 Defendant was still in the shower, Deputy Thouvenell entered the bathroom; with
2

1 his taser drawn, the deputy announced his presence, told Defendant to raise his
2 hands, and stated that he had a warrant for Defendant's arrest. Defendant initially
3 seemed compliant but then lunged at the deputy. Deputy Thouvenell attempted to
4 deploy his taser but was unsuccessful. After knocking Deputy Thouvenell to the
5 ground, Defendant jabbed and pressed on the deputy' s left eye and at some point
6 disarmed the deputy of his taser. Deputy Thouvenell "started kicking and throwing
7 	[his] hands up," at which point Defendant ran from the bathroom toward an exit of
8 the house, with Deputy Thouvenell following close behind. Upon reaching the door,
9 Defendant turned 	and pointed the taser at Deputy Thouvenell ' s face. 	Deputy
10 Thouvenell drew his handgun; Defendant then shoved the deputy, pushing him over
11 	some furniture. As Deputy Thouvenell got up, Defendant ran out the door naked,
12 	still holding the taser. Deputy Thouvenell pursued Defendant outside and shot at
13 	Defendant. Defendant then engaged in a protracted two-hour resistance in which he
14 hid under a nearby mobile home, was shot at again several times and hit by one
15 	bullet, made his way back to Ms. Gutierrez's home, and then barricaded himself
16 	inside. Defendant was finally extracted through the use of tear gas, a police dog, and
17 	a SWAT team.
18 	{3} 	Defendant was charged with aggravated battery upon a peace officer, which
19 	was amended down to battery upon a peace officer (Count 1), disarming a police
20 	officer (Count 2), aggravated assault upon a peace officer (Count 3), battery upon a
3

1 peace officer (Count 4), resisting, evading or obstructing an officer (Count 5), and
2 causing injury to a police dog (Count 6). The jury found Defendant guilty of both
3 counts of battery upon a peace officer (Counts 1 and 4) and of resisting, evading or
4 obstructing an officer (Count 5); Defendant was acquitted of all other charges.
5 DISCUSSION
6 I. 	Double Jeopardy
7 	{4} 	"The Double Jeopardy Clause of the Fifth Amendment, enforced against the
8 states by the Fourteenth Amendment, protects defendants from receiving multiple
9 punishments for the same offense." State v. Ramirez, 2018-NMSC-003, 138,409
10 P.3d 902 (internal quotation marks and citation omitted). Multiple punishment
11 	problems 	arise 	in 	both unit-of-prosecution claims, "in which an 	individual 	is
12 convicted 	of multiple 	violations 	of the 	same 	criminal 	statute[,]" 	and 	double-
13 	description claims, "in which a single act results in multiple charges under different
14 	criminal statutes[.]" State v. Bernal, 2006-NMSC-050, ,-r 7, 140 N.M. 644, 146 P.3d
15 	289. In this case, Defendant raises both unit-of-prosecution and double-description
16 	challenges to his convictions. "A double jeopardy claim is a question of law that we
17 	review de novo." Id. ,-r 6.
18 	A.
19 	{5}
Unit-of-Prosecution Cha ll enge
Defendant first raises a unit-of-prosecution challenge as to his two convictions
20 	for battery upon a peace officer (Counts 1 and 4). "The relevant inquiry in unit-of-
4

1 prosecution cases is whether the Legislature intended punishment for the entire
2 	course of conduct or for each discrete act." State v. Alvarez-Lopez, 2004-NMSC-
3 	030, ~ 40, 136 N.M. 309, 98 P.3d 699 (alterations, internal quotation marks, and
4 	citation omitted). "The unit-of-prosecution analysis is done in two steps." Bernal,
5 2006-NMSC-050, ~ 14. "First, we review the statutory language for guidance on the
6 	unit of prosecution." Id. "If the language is not clear, then we move to the second
7 	step, in which we determine whether a defendant's acts are separated by sufficient
8 	'indicia of distinctness' to justify multiple punishments under the same statute." Id.
9 "Finally, if we have not found a clear indication of legislative intent, we apply the
10 	'rule of lenity,' a presumption against imposing multiple punishments for acts that
11 	are not sufficiently distinct." State v. DeGrajf, 2006-NMSC-Ol l, ~ 32, 139 N.M.
12 	211,131P.3d61.
13 	{6} 	In this case, Defendant baldly asserts that Section 30-22-24 (battery upon a
14 peace officer) does not clearly set out the unit of prosecution; the State suggests the
15 	unit of prosecution may properly be measured by the number of officers involved,
16 	but then proceeds to the second step of the analysis. As such, neither party argues
17 that the relevant criminal statute is dispositive of the unit of prosecution nor presents
18 	developed arguments on the matter. Thus, we proceed to the second step of the unit-
19 of-prosecution analysis. See State v. Guerra, 2012-NMSC-O 14, ~ 21, 278 P .3d 1031
20 	( stating that appellate courts will not address arguments where parties failed to
5

1 develop them "with any principled analysis"); State v. Demongey, 2008-NMCA-
2 	066, ,-r 10, 144 N.M. 333, 187 P.3d 679 (proceeding to second step of the unit-of-
3 prosecution analysis where "neither party argues that the unit of prosecution is
4 clearly defined in the relevant criminal statutes").
5 	{7} 	To determine whether Defendant's acts are sufficiently distinct to support
6 multiple convictions, we look to factors adopted by our Supreme Court in Herron v.
7 State, 	1991-NMSC-012, ,-r 15, 	111 	N.M. 	357, 	805 P.2d 624. 	In particular, we
8 examine the "( 1) temporal proximity of the acts; (2) location of the victim during
9 each act; (3) existence of an intervening act; (4) sequencing of the acts; ( 5) the
10 	defendant's intent as evidenced by his conduct and utterances; and (6) the number
11 	of victims." State v. Garcia, 2009-NMCA-107, ,-r 10, 147 N.M. 150,217 P.3d 1048
12 	(citing Herron, 1991-NMSC-012, ,-r 15).
13 	{8} 	Defendant's two convictions for battery upon a peace officer arise from his
14 attempt to gouge Deputy Thouvenell's eye in the bathroom (Count 1) and his
15 	conduct in pushing Deputy Thouvenell over the furniture prior to fleeing the home
16 ( Count 4 ). Defendant argues that these two convictions violate his right to be free
17 from double jeopardy because they both "arose out of the same course of conduct
18 	with a single mens rea, necessitating one punishment for the single act." The State
19 argues instead that Defendant's "acts of battery were distinguishable and separated
20 by an intervening event when [Deputy] Thouvenell fought back after the initial
6

1 attack, and [Defendant] then got up and ran." We disagree with the State. Under the
2 particular facts of this case and our existing precedent, Defendant' s acts lacked
3 sufficient indicia of distinctness to justify multiple convictions for battery upon a
4 peace officer.
5 	{9} 	The record on appeal indicates that the acts of battery occurred close in time
6 and place, with one victim. Defendant jabbed and pressed on Deputy Thouvenell' s
7 eye in the bathroom and, after a brief scuffle, immediately ran for an exit, with the
8 deputy following right behind. Prior to fleeing the home, Defendant, taser in hand,
9 turned to face Deputy Thouvenell and then pushed the deputy over some furniture.
10 	While 	we 	cannot discern the 	exact time 	or distance 	separating the 	batteries,
11 	Defendant's actions within the home appear from the record to have occurred in
12 	rapid succession and were all part of one continuous effort by Defendant to get away
13 	from Deputy Thouvenel!. See State v. Mares, 1991-NMCA-052, ,-r 26, 112 N.M. 193,
14 	812 P.2d 1341 (noting the lack of detail in the record and determining that, even
15 	where the defendant repeatedly attacked the victim in a car, on the ground, and in a
16 nearby bush, the defendant's actions were "one violent rampage" and, thus, he
17 committed only one battery); see also Demongey, 2008-NMCA-066, ,-r 15 ("While
18 	there was a time elapse between shots of up to two minutes, as well as a distance
19 traveled of up to two miles, we cannot conclude that there were multiple, distinct
20 acts in this case."). And in the absence of detail in the record "indicat[ing] the time
7

1 between criminal acts, mere speculation [is] not sufficient to support a verdict of
2 multiple batteries." State v. Handa, 1995-NMCA-042, 125, 120 N.M. 38, 897 P.2d
3 225.
4 	{IO} 	The 	State argues 	that there was 	an 	intervening 	act-the 	scuffle 	in the
5 bathroom followed by Defendant's run toward the exit-sufficient to justify multiple
6 punishments. The State relies on State v. Cooper, 1997-NMSC-058, 124 N.M. 277,
7 949 P.2d 660, a double-description case in which the defendant' s convictions for
8 aggravated battery and second degree murder were upheld in the face of a double
9 jeopardy challenge. In Cooper, the evidence supported the determination that the
10 	initial battery was fully completed by the time the events leading to the victim's
11 	murder were committed. See id. 1 61. In double-description cases, it is well settled
12 	that conduct is not unitary and multiple punishments are authorized when there is
13 	"an identifiable point at which one of the charged crimes ha[s] been completed and
14 the other not yet committed." DeGraff, 2006-NMSC-Ol l , 127 (citing, among other
15 	authorities, Cooper, 	1997-NMSC-058, 1 59); see also State v. Melendrez, 2014-
16 NMCA-062, 1 10, 326 P.3d 1126 ("[W]hen there is an identifiable point between the
17 completion of one crime and the beginning of the other, conduct is not unitary and
18 	multiple punishments are authorized."). The same does not necessarily hold true in
19 unit-of-prosecution cases. As recognized in Herron, the fact that one instance of the
20 crime is technically "complete" does not mandate that each instance is a "new and
8

1 separate offense." 1991-NMSC-012, 1 12. Accordingly, we do not find Cooper
2 persuasive in this case.
3 	{11} 	Given the fact-intensive nature of our unit-of-prosecution analysis, we find
4 our decision in Demongey to be dispositive here. Like the case at bar, Demongey
5 involved a fleeing defendant who engaged in multiple acts of force (firing a gun)
6 toward the pursuing officer, with some intervening time and space between the acts.
7 See 2008-NMCA-066, 11 3-4. Notwithstanding that the shots were separated by
8 minutes and miles, our Court in Demongey found that "[t]he nature of the conduct
9 was one desperate attempt at fleeing and killing the officer in the process." Id. 1 16.
10 This Court did not consider the defendant's intervening flight significant and held
11 	"that there was one unitary course of conduct for the three acts of shooting[.]" Id.
12 	Here, the separation of Defendant's acts of force toward the deputy was very slight
13 	compared to Demongey. Given this precedent, we are not persuaded that intervening
14 acts identified by the State "can be considered a significant separating event[.]"
15 	Garcia, 2009-NMCA-107, 1 15 (finding no sufficient intervening event when the
16 	fight between the defendant and victim was interrupted by an unknown force
17 	knocking victim to the ground); see also Mares, 1991-NMCA-052, 126 (noting that,
18 	although the arrival of a vehicle apparently intervened to stop the defendant's
19 	beating 	of the 	victim, 	the 	record 	lacked 	detail 	to 	determine 	"whether 	[the
20 intervention] was but for a moment, or for an extended period of time").
9

1 {12} 	Furthermore, the record indicates that Defendant's intent never changed
2 throughout the episode. Rather, it appears that Defendant was singularly focused on
3 escaping Deputy Thouvenell and avoiding arrest. See Handa, 	1995-NMCA-042,
4 ,r 24 (concluding that the defendant's act of pointing a weapon at an officer and
5 shooting three times was "pursuant to a single, continuous intent to execute a single,
6 overall objective: to kill [the officer]"); Mares, 	1991-NMCA-052, ,r 26 ("[T]he
7 record [did] not prove that the intent behind the attack changed during the course of
8 the attack."). The only factor arguably weighing in favor of distinct conduct is the
9 different means used to batter Deputy Thouvenell-eye jabbing versus shoving. We
10 	have, however, previously held that different means or methods used by a defendant
11 	alone "is not sufficient for this [C]ourt to conclude that the offensive contacts were
12 	separate acts." Mares, 1991-NMCA-052, ,r 27; cf State v. LeFebre, 2001-NMCA-
13 	009, ,r,r 17-23, 130 N.M. 130, 19 P.3d 825 (holding, in double-description case, that
14 	where a defendant attempted to escape officers in his car and then on foot, the
15 	defendant's conduct was unitary because it all constituted one attempt to get away).
16 	{13} 	Based on the record before us, Defendant's acts were close in time and
17 	proximity, occurred with a single intent as part of a continuous attempt to flee the
18 	officer, and were committed against one victim. Given this, and bearing in mind the
19 	rule of lenity, we hold that Defendant's convictions for two counts of battery upon
20 a peace officer violate double jeopardy. See Bernal, 2006-NMSC-050, ,r 14 ("If the
10

1 acts are not sufficiently distinct, then the rule of lenity mandates an interpretation
2 that the [L ]egislature did not intend multiple punishments, and a defendant cannot
3 be punished for multiple crimes."). Accordingly, we vacate Defendant's second
4 conviction for battery upon a peace officer (Count 4). 1 Cf State v. Tidey, 2018-
5 NMCA-014, ,I 17,409 P.3d 1019 (vacating, on unit-of-prosecution double jeopardy
6 grounds, drug paraphernalia count associated with baggies while upholding drug
7 paraphernalia count associated with burnt straw).
8 B. 	Double-Description Cha ll enge
9 	{14} 	Defendant 	next 	raises 	a 	double-description 	challenge, 	argumg 	that 	his
10 convictions for resisting, evading or obstructing a peace officer and battery upon a
11 	peace officer violate his right to be free from double jeopardy. In analyzing double-
12 	description challenges, we employ the two-part test set out in Swafford v. State,
13 	1991-NMSC-043, ,I 25, 112 N.M. 3, 810 P.2d 1223, in which we examine: (1)
14 whether the conduct is unitary, and, if so, (2) whether the Legislature intended to
15 	punish the offenses separately. "Only if the first part of the test is answered in the
16 affirmative, and the second in the negative, will the double jeopardy clause prohibit
17 	multiple punishment in the same trial." Id.
1 Because we vacate Defendant's conviction for the second count of battery
upon a peace officer (Count 4), we need not address the jury instruction error raised
by Defendant as to this count.
11

1 {15} 	There is ample evidence in the record of Defendant's flight and evasion
2 separate and apart from any conduct giving rise to the battery upon a peace officer
3 convictions. But we need not undertake a unitary conduct analysis here because
4 Defendant "cannot carry the burden imposed by the second prong of the Swafford
5 test." Ramirez, 2018-NMSC-003,, 42; see also State v. Bahney, 2012-NMCA-039,
6 , 21,274 P.3d 134 (stating that it is permissible to presume unitary conduct because
7 "our case law separately makes it clear that analysis pursuant to either prong can be
8 dispositive of a Swafford-governed double jeopardy challenge").
9 	{16} 	"The sole limitation on multiple punishments is legislative intent[.]" State v.
10 Franco, 2005-NMSC-013,, 12, 137 N.M. 447, 112 P.3d 1104 (alterations, internal
11 	quotation marks, and citation omitted). In assessing legislative intent, our Supreme
12 	Court has directed that "we first look to the language of the statute itself. If the statute
13 	does 	not 	clearly 	prescribe 	multiple 	punishments, 	then 	the 	rule 	of 	statutory
14 	construction established in Blockburger v. United States, 284 U.S. 299 ... (1932),
15 	applies." State v. Swick, 2012-NMSC-018,, 11, 279 P.3d 747 (citation omitted).
16 "Under Blockburger, the test to be applied to determine whether there are two
17 offenses or only one, is whether each provision requires proof of a fact which the
18 	other does not." Swick, 2012-NMSC-018,, 12 (internal quotation marks and citation
19 omitted). "If each statute requires proof of a fact that the other does not, it may be
20 inferred that the Legislature intended to authorize separate punishments under each
12

1 statute." Id. ,-r 13. That inference or "presumption, however, is not conclusive and it
2 may be overcome by other indicia oflegislative intent." Swafford, 1991-NMSC-043,
3 i131.
4 	{17} 	Looking first to the language of the resisting, evading or obstructing an officer
5 statute (Section 30-22-1) and the battery upon a peace officer statute (Section 30-
6 22-24), neither clearly prescribes multiple punishments. See Swick, 2012-NMSC-
7 018, ,-r 11. As such, we apply the Blockburger test to the applicable statutes and
8 conclude that each requires proof of a fact that the other does not. Defendant was
9 charged, and the jury was instructed, under a specific subsection of the resisting,
10 	evading or obstructing an officer statute, see§ 30-22-l(B), and so we examine this
11 	subsection as part of our Blockburger analysis. See State v. Gutierrez, 2011-NMSC-
12 	024, ,-r 58, 	150 N.M. 	232, 258 P.3d 	1024 ("[W]e treat statutes written in the
13 	alternative as separate statutes for purposes of the Blockburger analysis." (internal
14 	quotation marks and citation omitted)).
15 	{18} 	Section 30-22-1 (B) requires "intentionally fleeing, attempting to evade or
16 	evading an officer of this state when the person committing the act of fleeing,
17 attempting to evade or evasion has knowledge that the officer is attempting to
18 	apprehend or arrest him[.]" In contrast, battery upon a peace officer is "the unlawful,
19 	intentional touching or application of force to the person of a peace officer while he
20 	is in the lawful discharge of his duties, when done in a rude, insolent or angry
13

1 manner." Section 30-22-24(A). Battery upon a peace officer requires proof that
2 Defendant touched or applied force to an officer, which is not required to prove
3 resisting, evading or obstructing an officer under Section 30-22-1 (B). Likewise,
4 Section 3 0-22-1 (B) requires proof that Defendant ( 1) fled, attempted to evade, or
5 evaded an officer (2) with knowledge that the officer was attempting to apprehend
6 or arrest Defendant, neither of which is required to prove battery upon a peace
7 officer. Therefore, one offense is not subsumed within the other, and Blockburger
8 gives rise to a presumption that the Legislature intended the offenses to be separately
9 punished. See Swafford, 1991-NMSC-043, 1 31.
10 	{19} 	"When two statutes survive Blockburger, we look to the language, history,
11 	and subject of the statutes, and we must identify the particular evil sought to be
12 	addressed by each offense." State v. Branch, 2018-NMCA-03 l, 130,417 P.3d 1141
13 	(internal quotation marks and citation omitted). "Statutes directed toward protecting
14 	different social norms and achieving different policies can be viewed as separate and
15 	amenable to multiple punishments." Swafford, 1991-NMSC-043, 132. "[T]he social
16 evils proscribed by different statutes must be construed narrowly[.]" Id. Here, the
17 relevant statutes protect against different societal harms. One of the purposes of
18 	Section 30-22-l(B), which prohibits the "intentionally fleeing, attempting to evade
19 	or evading an officer," is to protect the general public from harm that may result
20 from a fleeing suspect. Cf State v. Padilla, 2008-NMSC-006, 1 21, 143 N.M. 310,
14

1 176 P.3d 299 (concluding that the purpose of the aggravated fleeing statute, NMSA
2 	1978, Section 30-22-1.1 (2003), is to protect the general public from the dangers of
3 a high speed chase); State v. Padilla, 2006-NMCA-107, ~~ 34-35, 140 N.M. 333,
4 	142 P.3d 921 	(determining that Section 30-22-1.1 	and Section 30-22-l(B) are
5 "kindred" crimes and that Section 30-22-1 (B) is an included offense of Section 30-
6 22-1.1 ), rev'd on other grounds, 2008-NMSC-006. Conversely, the purpose of
7 Section 30-22-24(A) "is to protect the safety and authority of peace officers." State
8 v. Padilla, 1997-NMSC-022, ~ 5, 123 N.M. 216,937 P.2d 492 (emphasis omitted).
9 	{20} 	Additionally, 	we 	consider 	whether 	the 	offenses 	are 	usually 	committed
10 together. See Swafford, 1991-NMSC-043, ~ 33. There are myriad scenarios in which
11 	a defendant could resist, evade or obstruct an officer without committing battery on
12 	that officer and the converse is true as well-the two statutes are not necessarily
13 	violated together. Therefore, we conclude that the Blockburger presumption is not
14 overcome. Defendant's convictions for battery upon a peace officer (Count 1) and
15 	resisting, evading or obstructing an officer (Count 5) do not violate his right to be
16 	free from double jeopardy.
17 	II. 	Sufficiency of the Evidence
18 	{21} 	In making his sufficiency challenge, Defendant first contends that because the
19 jury acquitted him of disarming a police officer and the facts supporting battery upon
20 a peace officer (Count 1) happened "simultaneously," the jury should also have
15

1 acquitted him of the battery. It, however, is well established that a reviewing court
2 will not entertain an argument, such as this, that criminal verdicts are inconsistent
3 with one another. See State v. Rope r, 2001-NMCA-093, ,-r 24, 131 N.M. 189, 34 P.3d
4 	13 3 ("We have 	frequently 	said that our business is to review the verdicts 	of
5 conviction, and not concern ourselves with any alleged acquittals, and thus we do
6 not entertain contentions alleging that the verdicts are irreconcilable."); State v.
7 Leyba, 1969-NMCA-030, ,-r 37, 80 N.M. 190,453 P.2d 211 (holding that an acquittal
8 that is "irreconcilable" with a conviction "does not require the conviction to be set
9 aside as a matter of law" ). With respect to Defendant' s remaining convictions, he
10 	baldly asserts that they were not based on sufficient evidence. This is insufficient to
11 	raise 	a 	colorable 	sufficiency 	challenge. 	See 	Rule 	12-318(A)(4) 	NMRA 	("A
12 	contention that a verdict, judgment, or finding of fact is not supported by substantial
13 	evidence shall be deemed waived unless the argument identifies with particularity
14 the fact or facts that are not supported by substantial evidence[.]").
15 	CONCLUSION
16 	{22} 	We conclude that Defendant's two convictions for battery upon a peace
17 	officer violate the prohibition against double jeopardy. We therefore remand to the
18 	district court to vacate Defendant's conviction for battery upon a peace officer in
19 Count 4 and to resentence Defendant accordingly. Having concluded Defendant's
20 remaining claims of error are without merit, we otherwise affirm.
16

1 {23} IT IS SO ORDERED.
2 3
SOLAR
JENNIFER L. ATTREP, Judge
4
WE CONCUR:
5 6
M. MONICA ZAMORA, Chief Judge
7 8
J. MILES HANISEE, Judge
17