Filed 6/9/17 P. v. Ruano CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
JEFFREY MIGUEL RUANO,
Defendant and Appellant.
A143762

(Mendocino County
Super. Ct. No. SCUKCRCR 09-91948)

After the trial court revoked defendant Jeffrey Miguel Ruano’s probation, it placed into execution a previously imposed prison sentence of 16 years 8 months that had been the subject of a plea bargain. On appeal, defendant contends the court violated his plea bargain by placing the previously imposed prison sentence into execution after revoking his probation. He claims that the terms of his plea provided that his prison sentence would be permanently stayed if he completed a residential drug treatment program, irrespective of whether he complied with the other terms of his probation. He also urges that he is entitled to additional custody and conduct credits.
We agree that defendant is entitled to one extra day of custody credit and an extra 528 days of conduct credits. In all other respects, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In a two-count information filed in September 2009, the Mendocino County District Attorney charged defendant in count one with possession of cocaine for sale (Health & Saf. Code, § 11351) and in count two with possession of methamphetamine for sale (Health & Saf. Code, § 11378). The information contained a special allegation as to count one regarding the quantity of cocaine possessed for sale by defendant. The information contained 10 special allegations concerning prior convictions defendant had suffered (Pen. Code, § 1203.07, subd. (a)(11), Health & Saf. Code, § 11370.2, subd. (a)) or prior prison terms he had served within the meaning of Penal Code section 667.5.
On April 21, 2011, pursuant to a plea bargain, defendant pleaded no contest to counts 1 and 2 and admitted that he had suffered four prior drug-related convictions (Health & Saf. Code, § 11370.2, subd. (a)). As part of the plea, defendant agreed to a prison term of 16 years 8 months, with execution of the sentence suspended. It was further agreed defendant would be placed on probation with the opportunity to participate in a residential drug treatment program at Delancey Street in San Francisco. In exchange for the plea, the prosecutor agreed to dismiss the remaining special allegations. Consistent with the terms of the plea, the court imposed a sentence of 16 years 8 months and suspended execution of the sentence. Defendant was placed on probation for five years subject to various terms and conditions, including that he enroll in and successfully complete a residential drug treatment program at Delancey Street.
Defendant’s probation officer filed an amended petition in September 2014 alleging that defendant had committed multiple violations of probation. A contested probation revocation hearing was held on October 15, 2014. At the hearing, an officer testified that he found a switchblade and a pipe for smoking methamphetamine in defendant’s possession during a probation search. In addition, the prosecution presented evidence that police officers had pursued defendant on a high speed chase through Solano County, Contra Costa County, and Santa Clara County in March 2014. Defendant was traveling at high rates of speed, weaving in and out of lanes, and not obeying traffic lights. The chase ended only after the tires in the vehicle defendant was driving started to deflate after being punctured by spike strips placed on Interstate 680 by officers who responded to the high speed chase.
In December 2014, the trial court revoked appellant’s probation and placed the previously imposed sentence of 16 years 8 months into execution. The court awarded defendant 1,781 days of presentence credits, composed of 1,431 actual days served plus 350 days of conduct credits.
During the sentencing proceedings on defendant’s Mendocino County convictions, identified as “Case A” in the abstract of judgment (hereafter the “Mendocino case” or “Case A”), the court also resentenced defendant in City and County of San Francisco Superior Court case number 222067, which is identified as “Case B” in the abstract (hereafter the “San Francisco case” or “Case B”). In Case B, defendant had entered a plea of guilty to resisting an executive officer (Pen. Code, § 69) and admitted one prior prison term enhancement pursuant to Penal Code section 667.5, subdivision (b). The court in the San Francisco case originally imposed an agreed-upon four-year split sentence, with one year served in custody and three years on mandatory supervision. The court had originally awarded 318 days of presentence credits in Case B. The court in the Mendocino case resentenced defendant on Case B by imposing a consecutive sentence of 1 year 8 months, with 270 days of credits for actual days served and no conduct credits.
The aggregate sentence in both Case A and Case B was 18 years 4 months, with 2,051 days of presentence credit awarded. Defendant timely appealed.
DISCUSSION
1. The plea agreement allowed the trial court to place defendant’s previously imposed prison sentence into execution after probation was revoked.
Defendant contends that his plea agreement provided that his prison sentence would be “permanently stayed” upon his successful completion of a two-year program at Delancey Street. Because he successfully completed the Delancey Street program, defendant argues that the court erred in placing his previously imposed sentence into execution after he violated the terms of his probation. As we explain, the contention lacks merit. It is unreasonable to construe the plea agreement to provide that defendant could avoid serving any prison time if he satisfied only one of the probation conditions imposed by the court.
A. Background
At a change of plea hearing conducted in April 2011, the prosecutor announced that the parties appeared to have reached an agreement for a plea. The prosecutor stated that he wanted “to be very clear what the ground rules are,” clarifying that defendant “wants to go to Delancey Street with a very large suspended prison sentence over his head.” The prosecutor then said, “But I want to make sure that he understands that if there’s a failure on a five-year probation” with a suspended sentence of 16 years 8 months, “that we’re not going to quibble about it when he comes back; he’s just going to man up and take your prison time.” The prosecutor offered to discuss the matter further in chambers. Defense counsel agreed to take the matter up in chambers but assured the court that she had spent almost two years with defendant telling him what would happen if he “fail[ed] any part of his probation in any way.” The court agreed to discuss the matter further in chambers.
Following the discussion in chambers, the court announced that “[i]t’s been proposed that there be a disposition affecting [defendant] that would enable him to agree to a specific sentence, execution stayed, to enable him to go down to Delancey Street in San Francisco. [¶] If he completes their very rigorous program, then, of course he would never have to serve that sentence that was stayed; but if he was not accepted into Delancey Street or if, after being accepted, he was terminated from that program, then the sentence that was stayed would immediately be imposed.” (Italics added.)
When the court asked if defendant understood, defense counsel answered in the affirmative and explained: “In chambers there was a brief discussion or a point brought up that if he were rejected, then he would go straight to sentencing. That was a new twist that really hadn’t been discussed with him, basically gambling so much on this program taking him.” The court stated that there was no guarantee defendant would be accepted into the program and agreed that it was a gamble for defendant to risk having to serve a lengthy prison sentence if he were not accepted into the program. Defense counsel asked if there could be a fallback that would allow defendant to serve a shorter prison term if he were not accepted into Delancey Street. Defense counsel referred to a longstanding prosecution offer of a prison term of 12 years 8 months, and suggested that offer could be made available to defendant if he were not accepted into Delancey Street. The prosecutor declined to allow for a fallback. Instead, as explained by the prosecutor, defendant could take the 16 years 8 months offer and gamble on being accepted into Delancey Street for a chance at probation, or he could take the 12 years 8 months offer and be assured of serving prison time. Defendant agreed that no promises had been made to him other that “that there would be unusual circumstances found and that [he] would be allowed to go to Delancey Street as a condition of [his] probation rather than serve the 16 years, 8 months.”
Defendant pleaded no contest to the two drug possession charges and admitted four of the special allegations. The court advised defendant, “If you’re sentenced and granted probation with execution stayed on the 16 years, 8 months, a condition of which is you go to Delancey Street, and you’re rejected by them, then the probation is out the window and the 16 years would be imposed.” Defendant said that he understood. The prosecutor then reiterated that defendant would go to prison if he did not get into Delancey Street.
The probation officer’s report prepared for purposes of sentencing recommended that defendant be sentenced to 16 years 8 months in state prison, with execution of sentence suspended, and that defendant be placed on formal probation for five years “under the terms and conditions indicated on the attached proposed Order of Probation.” Among other conditions listed in the order of probation, condition number 43 specified that defendant “shall enroll in and successfully complete a two-year minimum residential treatment program at Delancey Street Foundation.”
At the sentencing hearing on June 10, 2011, the court and the prosecutor both emphasized that defendant would have to serve a prison term if he were not accepted into Delancey Street. Defendant confirmed that he understood that aspect of the agreement and said he was willing to take the risk, stating that he was “sure” he would be accepted into the program. The court proceeded to sentence defendant to a total term of 16 year 8 months and suspended execution of the sentence. The court placed defendant on probation for five years on the terms and conditions recommended by the probation officer.
In January 2014, defendant’s probation officer filed a petition alleging that defendant had violated his probation. The probation officer filed an amended petition in September 2014. Following a probation revocation hearing conducted in October 2014, the court concluded that defendant had violated the terms of his probation by driving in a willful and wanton disregard for the safety of persons or property while fleeing from pursuing police officers, and for possessing a switchblade knife, a pipe for ingesting a controlled substance, and ammunition. The court described the police chase as one that extended for over one hundred miles at speeds in excess of one hundred miles per hour, with defendant weaving in and out of lanes and running red lights. The court stated that it was “inclined to revoke probation and execute the sentence previously imposed of sixteen years, eight months in state prison.” The court added, “So while the defendant may have been successful at Delancey Street, I’m not sure it’s clear that he has any regard for the law or the lives of individuals that he endangered and, further, probation would not be helpful or successful.” Defense counsel requested a full sentencing hearing.
In a sentencing memorandum filed by defense counsel, she cited the court’s statement at the April 2011 change of plea hearing to the effect that if defendant completed the very rigorous program at Delancey Street, “he would never have to serve that sentence that was stayed . . . .” Defense counsel wrote that the court’s advisements “raise the issue of whether [defendant] was induced to enter his plea based on the apparent modification described by the court and not objected to by the District Attorney . . . .” (Italics added.) Defense counsel pointed out that defendant had successfully completed the two-year Delancey Street program and urged that the court’s statement at the time of the plea “amounted to an explicit promise that the sixteen year eight month prison term would be permanently stayed upon [defendant’s] successful completion of Delancey Street.”
At the sentencing hearing, defense counsel admitted it would be a “stretch” for defendant to be reinstated on probation but again argued that the judge who took the plea advised defendant that he would never have to serve his prison term if he successfully completed his program at Delancey Street. Defense counsel argued that the court’s statement could be “reasonably interpreted . . . as a modification of the plea bargain.”
The court responded that, after reading the transcript of the plea “at least five times” and looking at the pleadings in the files, it concluded defense counsel’s interpretation was “unreasonable.” The court continued: “[T]he order of probation, I mean, it’s very clear that he was placed on five years of probation. One of the conditions of which he was to attend Delancey Street. But he has all these other conditions, and one of them is to obey all laws and orders of the Court. [¶] To me, when I read the transcript . . . the issue was if he didn’t get into Delancey Street, then he would immediately be transported to serve that sentence, not that Delancey Street was the only condition of probation. And that’s supported by the actual order of probation as well.” The prosecutor responded that the court’s interpretation was “right on the point” and urged that there was never a modification of the plea agreement. The prosecutor characterized defendant’s argument as a “sly attempt” to get something that was not the subject of the parties’ agreement based upon “just some unfortunate choice of words in a transcript.” At the conclusion of argument, the court placed the previously imposed sentence of 16 years 8 months into execution.
B. Legal framework
Negotiated pleas are a well-established component of the criminal justice system that promote speed, economy, and finality of judgments. (People v. Knox (2004) 123 Cal.App.4th 1453, 1458.) Because a negotiated plea agreement is a form of contract, it is interpreted according to general contract principles. (People v. Feyrer (2010) 48 Cal.4th 426, 437.) “ ‘ “The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties. [Citations.]” . . . “The mutual intention to which the courts give effect is determined by objective manifestations of the parties’ intent, including the words used in the agreement, as well as extrinsic evidence of such objective matters as the surrounding circumstances under which the parties negotiated or entered into the contract; the object, nature and subject matter of the contract; and the subsequent conduct of the parties.” ’ ” (Ibid.)
In interpreting a plea agreement, the courts should be “mindful of the rule that every term of a plea agreement should be stated on the record.” (People v. Feyrer, supra, 48 Cal.4th at p. 438.) This rule ensures not only that the defendant is made aware of all of the terms of the agreement before he consents, but it also ensures that the trial court is made aware of any provision purporting to limit its authority in the future, which may cause the court to reject the proposed plea agreement. (Ibid.) A term purporting to restrict the court’s sentencing authority may not be implied. (See ibid.)
“[T]he process of plea negotiation ‘contemplates an agreement negotiated by the People and the defendant and approved by the court.” (People v. Segura (2008) 44 Cal.4th 921, 929–930.) Only the prosecutor is authorized to negotiate a plea agreement on behalf of the state. (Id. at p. 930.) “ ‘[T]he court has no authority to substitute itself as the representative of the People in the negotiation process . . . .” (Ibid.) “If the court does not believe the agreed-upon disposition is fair, the court ‘need not approve a bargain reached between the prosecution and the defendant, [but] it cannot change that bargain or agreement without the consent of both parties.’ ” (Id. at p. 931.) “ ‘ “A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.” ’ ” (Id. at p. 931.)
The requirements of due process attach to the implementation of a plea bargain. (People v. Mancheno (1982) 32 Cal.3d 855, 860.) “Specific enforcement [of the bargain] is appropriate when it will implement the reasonable expectations of the parties without binding the trial judge to a disposition that he or she considers unsuitable under all the circumstances.” (Id. at p. 861.)
C. Analysis
The terms of the plea agreement in this case were clear. The prosecutor was willing to agree to place defendant on probation to allow him to enroll in the Delancey Street program, but the prosecutor insisted on a large suspended sentence that would be placed into execution if there was “a failure on a five-year probation.” The plain import of the prosecutor’s recitation of the plea’s terms was that any failure to abide by the terms of probation would potentially trigger execution of the suspended sentence. Defense counsel shared this understanding, as she had explained to defendant what would happen if he “fail[ed] any part of his probation in any way.” (Italics added.)
After a conference was held in the judge’s chambers, the court stated on the record that a proposed disposition had been reached that would allow defendant to enroll in Delancey Street in exchange for a specific sentence, the execution of which would be suspended. Defense counsel mentioned a “new twist” that had been brought up in chambers—specifically, that if Delancey Street did not admit him into its program, defendant would be considered in violation of his probation and would be sent to prison to serve his suspended sentence. As everyone acknowledged, defendant was taking a great risk in pursuing the plea bargain because he could be sent to prison for over 16 years if Delancey Street declined to accept him into its program. The alternative was for defendant to accept a prison term of 12 years 8 months, without an opportunity to pursue residential drug treatment or to be placed on probation.
In emphasizing the risk that defendant faced if he were not accepted into Delancey Street or failed to complete the program, the court uttered the sentence that forms the basis for defendant’s appeal: “If he completes their very rigorous program, then, of course he would never have to serve that sentence that was stayed; but if he was not accepted into Delancey Street or if, after being accepted, he was terminated from that program, then the sentence that was stayed would immediately be imposed.” Based upon this sentence—and in particular the first clause of the sentence—defendant argues that he would never have to serve his prison sentence if he successfully completed the Delancey Street program, no matter what else he did. He claims he understood that he would still be subject to continued legal supervision as a probationer, but that his maximum legal exposure for any violation of probation during the probationary period would be one year in jail. He also contends he “detrimentally relied on the promise that even as probation continued beyond Delancey Street, he would never have to serve the stayed prison sentence.” For reasons we explain, defendant’s interpretation is unreasonable, and his claim of detrimental reliance is specious.
The mutual intention of the parties is manifest in the record. Defendant’s intention was to obtain probation. In order to do so, he had to agree to be sentenced to a lengthy prison term, with execution suspended, and to agree to numerous probation conditions, including successful completion of a two-year program at Delancey Street. Both the prosecutor and defense counsel understood that defendant could be sent to prison if he violated any of the terms of his probation. The court’s reference to defendant never having to serve his sentence if he completed the Delancey Street program was limited to the context of that particular probation condition. The court was simply trying to emphasize that defendant would be at risk of being sent to prison if he were rejected from, or otherwise failed to complete, the Delancey Street program. It is unreasonable to read the court’s statement more broadly to suggest that defendant would be immunized from serving his suspended sentence if only he completed the Delancey Street program, no matter what else he did.
Nowhere in the record did the parties state or memorialize in writing that the suspended sentence would disappear once defendant successfully completed Delancey Street. The order of probation lists the condition requiring defendant to enroll in and complete a residential drug treatment program as just one condition among many; the order gives no indication that a violation of one condition is treated any differently from a violation of any other condition. There is certainly nothing in the record confirming that defendant’s maximum legal exposure for a violation of probation, other than failure to complete a residential drug treatment program, would be one year in jail. Aside from the one sentence uttered by the court that forms the basis for defendant’s appeal, there is no support in the record for the notion that the plea agreement allowed defendant to avoid a prison term if he completed the program at Delancey Street. Indeed, when the parties emerged from the in-chambers conference and defense counsel mentioned a “new twist,” she only referenced the fact that defendant would be sent to prison immediately if he were not accepted at Delancey Street. Clearly, if the parties had agreed in chambers that defendant would be immunized from serving prison time if only he completed the program at Delancey Street, that would have been a twist worth mentioning. The rule that every term of a plea agreement should be stated on the record is particularly apt here, because the interpretation that defendant proposes places a severe limitation on the court’s sentencing authority. A term purporting to restrict the court’s sentencing authority cannot be implied based upon an ambiguous comment. (See People v. Feyrer, supra, 48 Cal.4th at p. 438.)
Further, we are not persuaded that defendant detrimentally relied upon any understanding that he would avoid prison time if he completed the Delancey Street program. He was willing to, and did, agree to a plea bargain in which it was understood that he could be sent to prison if he violated the terms of his probation in any way. He agreed to these terms before the court even uttered the sentence that he now interprets to mean he could avoid prison if he completed his residential drug treatment program. In characterizing the statement by the court as an “apparent modification” of the terms of the parties’ plea agreement, defense counsel below effectively acknowledged that the interpretation now urged by defendant was not consistent with the agreement reached by the parties. In short, there is no reason to believe that defendant accepted the plea agreement in reliance on a promise that he could avoid prison time by completing the Delancey Street program.
We conclude the court did not violate the plea agreement or otherwise err in placing the suspended sentence into execution. We also reject defendant’s alternative argument that he was deprived of fair notice of the consequences of a violation of probation, and that he should be reinstated on probation with the understanding that any further violation of his probation could result in prison time. Defendant is not entitled to a second chance at probation on the basis of an interpretation of the plea agreement that we have concluded is objectively unreasonable.
2. Defendant is entitled to additional custody and conduct credits.
Defendant argues that he is entitled to additional presentence custody and conduct credits. His claims are cognizable on appeal, despite the lack of an objection below, because “[a] sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered.” (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
A. Additional custody credit in Mendocino case (Case A)
Defendant contends he is entitled to one additional day of presentence credit for actual time served in Case A. We agree that he should receive credit for one additional day. Defendant was at Delancey Street from June 16, 2011, to June 16, 2013. The probation officer calculated 731 actual days of custody credit for the time spent at Delancey Street. Ordinarily, a two-year period that starts and ends on the same calendar date would include 731 days (365 times 2 plus 1). (See People v. Bravo (1990) 219 Cal.App.3d 729, 735 [partial day of custody counts as whole day].) However, because 2012 was a leap year, defendant is entitled to one additional day. Accordingly, defendant should receive 732 days of custody credit for time served at Delancey Street. Defendant acknowledges that no conduct credits are available for this time served in a residential drug treatment facility. (See People v. Downey (2000) 82 Cal.App.4th 899, 920.)
B. Additional conduct credits in San Francisco case (Case B)
Upon resentencing defendant in the San Francisco case, the Mendocino County Superior Court awarded 270 presentence credits based upon actual time served but awarded no conduct credits. Defendant contends he is entitled full, day-for-day conduct credits because he committed the violation of Penal Code section 69 in the San Francisco case after October 1, 2011, the effective date of an amendment to Penal Code section 4019 that authorized day-for-day conduct credits. (See People v. Hul (2013) 213 Cal.App.4th 182, 187.) The People concede that defendant should have been awarded 270 days of conduct credits in the San Francisco case. Accordingly, defendant is entitled to a total of 540 days of presentence credit in the San Francisco case, composed of 270 days of actual custody credit plus 270 days of conduct credit.
C. Additional conduct credits in Mendocino case (Case A)
Defendant claims he is entitled to 258 additional presentence custody credits in the Mendocino case “because the court applied the old formula, and as to time served between January 25, 2010 through June 15, 2011, the January 25, 2010 amendment to [Penal Code] section 4019 is applicable.” We agree.
Defendant committed his crimes in the Mendocino case on July 16, 2009. He spent 700 days in custody in county jail beginning in July 2009 until he was received at Delancey Street in July 2011. At the December 2014 sentencing hearing, the parties disputed which formula was applicable to calculate conduct credits for this initial period of presentence custody. The court determined that defendant was entitled to two days of conduct credit for every four days actually served, and thus awarded 350 days of conduct credits.
Defendant contends the formula applied by the court was only partially correct. He agrees that the more restrictive formula applied for the period from July 16, 2009, through January 24, 2010. However, for the period from January 25, 2010, through June 15, 2011, he claims that he is entitled to custody credits based upon the more generous formula applicable when the custody was actually served. Effective January 25, 2010, Penal Code section 4019 was amended to provide that “eligible prisoners would earn two days of conduct credit for every two days spent in local custody.” (People v. Brown (2012) 54 Cal.4th 314, 318, fn. omitted (Brown).)
The Supreme Court in Brown held that the amendment to Penal Code section 4019 that became operative on January 25, 2010, applies prospectively only. (Brown, supra, 54 Cal.4th at p. 318.) Thus, eligible prisoners in local custody “first became eligible to earn credit for good behavior at the increased rate beginning on the statute’s operative date.” (Ibid.) As the court in Brown acknowledged, its decision “necessarily means that prisoners whose custody overlapped the statute’s operative date (Jan. 25, 2010) earned credit at two different rates.” (Id. at p. 322.) Here, because defendant’s period of custody in county jail straddled the statute’s January 2010 operative date, he earned conduct credits at two different rates. Defendant is entitled to receive two conduct credits for each two days spent in county jail for the 517-day period from January 25, 2010, through June 15, 2011. He should have received 516 custody credits for that period but was awarded only 258 based upon the more restrictive formula used by the trial court. Consequently, he is entitled to an additional 258 custody credits in the Mendocino case.
The People argue that defendant is not entitled to additional conduct credits. They claim the applicable formula is the one that was in effect when he committed his crimes. As support for their argument, they rely on a trio of cases that assess the application of a later amendment to Penal Code section 4019 that became operative on October 1, 2011. (See People v. Ellis (2012) 207 Cal.App.4th 1546; People v. Rajanayagam (2012) 211 Cal.App.4th 42; People v. Whitaker (2015) 238 Cal.App.4th 1354.) These cases are inapposite. The amendment to Penal Code section 4019 that became operative in October 2011 specifically provided that it applies only to defendants serving local custody for crimes committed on or after October 1, 2011. (People v. Rajanayagam, supra, at p. 51.) By contrast, the January 25, 2010, amendment to Penal Code section 4019 that is relevant to our analysis had no comparable provision limiting its application based upon the date the defendant’s crime was committed. (Former Pen. Code, § 4019, as amended by Stats. 2009-2010, 3rd Ex. Sess., ch. 28, § 50.) As the court in Brown recognized, a defendant whose period of local custody overlapped the January 2010 amendment to Penal Code section 4019 would be entitled to earn custody credits at the increased rate as of the amendment’s operative date. (Brown, supra, 54 Cal.4th at pp. 318, 322.)
DISPOSITION
In Mendocino County Superior Court case number SCUKCRCR 09-91948 (Case A), the sentence is modified to reflect an award of presentence credit totaling 2,040 days, consisting of 1,432 days of actual presentence custody credit plus 608 days of local conduct credit.
In City and County of San Francisco Superior Court case number 222067 (Case B), the sentence is modified to reflect an award of presentence credit totaling 540 days, consisting of 270 days of actual presentence custody credit plus 270 days of local conduct credit.
The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.


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McGuiness, P.J.


We concur:


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Pollak, J.


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Jenkins, J.