Filed 9/29/17 Graney v. Regents of the University of California CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Matthew Graney appeals from an order denying his petition for a writ of mandate, which Graney had filed with respect to a decision terminating his employment with the University of California San Francisco Police Department. He contends (1) the administrative findings and decision to uphold the termination of his employment were based exclusively on hearsay evidence and unauthenticated documents; (2) the trial court employed an incorrect legal standard in reviewing the evidence; and (3) there was insufficient evidence to uphold the administrative decision. We will affirm the order.

I. FACTS AND PROCEDURAL HISTORY

Graney’s writ petition was filed against respondents, The Regents of the University of California, the University of California San Francisco, and the University of California San Francisco Police Department (UCSF Police Department). A reference herein to “respondents” refers to one or more of them.

A. Administrative Proceedings

In February 2009, respondents hired Graney as a police officer. At that time, he agreed in writing to abide by policies, procedures, and orders setting forth the standards and competency requirements for respondents’ police officers.

Between November 2011 and December 2011, respondents received anonymous phone calls and emails alleging misconduct by Graney, including that he posted photographs to Facebook while on duty, publicly urinated while in uniform, suffered from paraphilic disorder, and was involved in stalking and welfare fraud. The emails listed five female witnesses to the allegations, but respondents determined that four of them had no information concerning the alleged wrongdoing. The fifth female was identified as Shannon Brasher, who was Graney’s former girlfriend.

Brasher, who lived out of state, had no information concerning the anonymous allegations, but asserted that Graney committed other misconduct: disclosing respondents’ restricted information by giving her access to his work email; misrepresenting that he had completed his training, in that he had Brasher do it for him; and spending hours on the phone with Brasher while he was at work.

1. Internal Affairs Investigation and Notice of Intent to Dismiss

Over several months, UCSF Police Department Lieutenant Eric Partika, an experienced investigator with expertise in computer-related crimes, led an internal affairs investigation regarding the allegations. The investigation included collecting documents from Brasher, analyzing those documents along with respondents’ records, and interviewing Brasher and Graney separately. Based on the nature of Graney’s answers and demeanor during his interview, Partika determined that Graney was being uncooperative, evasive, and dishonest.

On August 22, 2012, respondents issued to Graney a Notice of Intent to Terminate Employment. The notice identified violations of seven UCSF Police Department regulations and general orders, campus administrative policies, and university-wide police policies and administrative procedures, based on the following: (1) Graney allowed and requested Brasher to access his work email account to send work-related emails on his behalf, which gave her unfettered access to sensitive law enforcement information, and Graney allowed Brasher to access the California Peace Officers Standards and Training (POST) learning portal and complete required training on his behalf; (2) Graney spent excessive time speaking with Brasher on his cell phone while on duty; and (3) on multiple occasions, Graney was not credible and honest in responding to questions during Lieutenant Partika’s investigation, including not only denying that he gave anyone his password, but also becoming “defensive and uncooperative.”

As to the accusation that Graney posted photographs to Facebook while on duty, Graney admitted the allegation to Lieutenant Partika, but it was not referenced in the Notice of Intent to Terminate Employment. Other allegations against Graney – that he urinated in public, had paraphilic disorder, and was a suspect in a stalking investigation and welfare fraud investigation – were not sustained.

2. Skelly Hearing and Notice of Termination

The matter proceeded to a hearing pursuant to Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly Hearing). Graney was represented by an attorney. After the hearing, UCSF Police Department Chief Pam Roskowski issued Graney a written notice of termination on November 7, 2012.

Chief Roskowski’s notice recounted the Skelly Hearing. Graney acknowledged at the hearing that he posted a photograph of campus demonstrations on Facebook. He denied, however, providing his work email and POST learning portal passwords to Brasher, asking her to complete work assignments or training on his behalf, allowing her access to his UCSF work email, or speaking to Brasher during work hours by phone for as much time as alleged. Chief Roskowski did not find Graney’s excuses credible, concluded that the evidence supported the determination that he violated orders and regulations, and upheld the decision to terminate his employment.

3. Grievance Procedure

From November 2012 to April 2013, Graney exhausted a three-step grievance procedure pursuant to his union contract. At all three steps, the action to terminate his employment was upheld.

4. Post-Deprivation Hearing

Graney ultimately appealed his dismissal pursuant to the UCSF Campus and Medical Center Post-Deprivation Hearing Procedures for Represented Employees. The post-deprivation hearing was held on April 22 and 23, 2014. The parties agreed that the sole issue was whether respondents had just cause to dismiss him from his employment (and if not, what the remedy would be).

By letter dated October 14, 2014, the hearing officer recounted the testimony and made his rulings on the violations set forth in the letter of intent to dismiss.

a. Lieutenant Partika’s Testimony

Lieutenant Partika testified that the UCSF Police Department commenced its investigation after receiving anonymous emails detailing allegations about Graney. Partika was initially suspicious of the veracity of the allegations since they were sent anonymously, and he became concerned that the informant with the most information about Graney’s alleged wrongdoing was Graney’s former girlfriend, who was upset with Graney for his alleged infidelity. Respondents were nonetheless compelled to investigate the allegations given their seriousness. Partika testified in detail as to the scope of his multi-month investigation, how he called each witness identified in the emails, and the manner in which he requested and collected documents and analyzed them.

Lieutenant Partika testified that Brasher contended Graney had given her the password to his work email, and she had written emails on Graney’s behalf regarding UCSF Police Department business. Brasher provided Partika with examples of emails she drafted or edited and sent. She also had knowledge of specific details in a confidential UCSF Police Department crime blog.

According to Lieutenant Partika, Brasher also alleged that she had taken POST exams on behalf of Graney. Evidence included Facebook chat conversation records, in which Brasher referred to the training. (The screenshot of the Facebook conversation showed Brasher telling Graney, “Yessir. just closing 100 other windows from your stupid ridiculous training ugh.” The date of the Facebook message corresponded with the date the POST portal recorded the completion of Graney’s training.) In addition, while Partika was on the phone with Brasher, she used Graney’s password to access one of the POST certificates for the online training she claimed to have performed on his behalf, and she was able to provide information about the training she had completed.

Another allegation involved Graney spending excessive time on his personal cell phone with Brasher while on duty. Lieutenant Partika explained how he cross-referenced Brasher’s phone records, which he received from her, with Graney’s work schedule, patrol times, investigations, and arrest reports. Partika presented “statistical” (documentary) evidence on the exact time and duration of the calls, along with evidence of Graney’s work duties at the time of the calls. According to the phone records, Graney spent 155 hours on the phone with Brasher in calls that exceeded 45 minutes – while on duty – and over 251 hours of calls that were in excess of 10 minutes. During some of these phone calls, Graney was involved in traffic stops, information reports, community-based policing, citizen contact, the investigation of suspicious vehicles, and handling public disturbances.

Based on his training, experience, and expertise in forensic computer fraud investigations, Lieutenant Partika considered it highly unlikely that Brasher would be able to fabricate the extensive volume of documentation she provided – including emails, texts, online chat screens, and phone records – so quickly and without any forewarning from him.

Lastly, Partika testified as to the manner in which Graney was evasive and uncooperative during the internal police investigation.

b. Chief Roskowsi’s Testimony

Chief Roskowki testified that Graney admitted calling Brasher during work hours and having Brasher help him review and edit non-confidential work emails. She also explained that the fundamental role of a police officer is to be a “neutral and credible arm of the law,” and that “truth and honesty are key characteristics of the job.”

c. Graney’s Testimony

Graney admitted posting the photograph of the demonstration on Facebook. He testified that Brasher might have gained access to his password by looking over his shoulder, but denied giving Brasher the password or permission to use his email account, or directing Brasher to send work-related emails on his behalf. He also denied giving Brasher his password for the POST website. He claimed the screen shot of Brasher advising she had just finished his “stupid, ridiculous training” related to a computer game. He admitted calling Brasher while at work but could not recall how often; when asked about a relatively lengthy call shown on the phone records, he said he must have inadvertently left his phone on during patrol. The hearing officer did not find Graney’s explanations plausible, and ultimately concluded: “Taken in totality, I found the credibility of Mr. Graney was lacking.”

d. Graney’s Hearsay Objection

The hearing officer noted that a “key witness” (Brasher) had not appeared at the hearing, and that Graney had lodged a general objection that Lieutenant Partika’s testimony about what Brasher said was hearsay. The hearing officer discussed the weighting of the evidence and noted that documentation was presented as well as hearsay. He explicitly took into consideration the “fact that Ms. Brasher had been in a romantic relationship with Mr. Graney” and Brasher “did not appear at the hearing, so no cross-examination could occur.”

e. Hearing Officer’s Conclusions

The hearing officer upheld Graney’s dismissal on the bases identified in the notice of intent.

Specifically, the hearing officer determined that the evidence established the allegation that Graney allowed and requested Brasher to access his work email and send work emails on his behalf, and allowed her to access his POST learning portal and complete training on his behalf. The hearing officer observed: “Based on evidence presented in the form of chat messenger window screen shots and corresponding emails that related to those chat screens, it was more likely than not that Mr. Graney was very well aware that Ms. Brasher was in his email and POST accounts. The testimony Mr. Graney gave that Ms. Brasher was referring to the video game ‘Eve’ rather than his POST trainings was not credible. There were instances of chat conversations occurring and then a subsequent business email would be sent to the department – indicating a very strong correlation that Ms. Brasher indeed was drafting emails for Mr. Graney and was in his email account at UCSF.”

As to the allegation that Graney spent an excessive amount of time speaking with Brasher on his cell phone while on duty, the hearing officer found that respondents not only established the violations by a preponderance of the evidence, but by clear and convincing evidence based on the unrefuted phone records. In this regard, the hearing officer noted that Graney did not expressly deny the allegation of the excessive personal phone use while on duty or present any evidence that Brasher falsified her phone records, but merely suggested that personal phone use was acceptable on the job.

The hearing officer also decided that the evidence established the allegation that Graney on multiple occasions was not credible and honest in his responses to questions during the investigation. Clear and convincing evidence of this violation was provided by Lieutenant Partika’s testimony that Graney was uncooperative, along with the Chief’s concurring testimony.

The hearing officer also noted that, in addition to the violations stated in the letter of intent to dismiss, Graney admitted to posting a picture of a campus protest on his personal Facebook account, which established a separate violation.

In addition, the hearing officer remarked pointedly that his decision was not based on hearsay alone. “During this hearing, I found the testimony of Lt. Partika to be credible, especially when compared with Mr. Graney’s testimony. His investigation seemed fair and well-rounded. In addition to evidence that is considered hearsay, there was Mr. Graney’s own testimony, phone records, emails, and chat messenger conversations. In order to not just rely on hearsay, it had to be determined if the records provided were legitimate. I found that the defense actually relied on the chat messenger window screen shots to defend one of the allegations. . . . I find it more likely than not that the documents in question are legitimate. The effort to fabricate all of the documents presented was not credible. While not ideal that the complainant could not confront his accuser in this forum, Lt. Partika relied little on hearsay statements provided by Ms. Brasher. Lt. Partika did, however, rely on the phone records provided by Ms. Brasher. Mr. Graney had multiple opportunities throughout the grievance process and at this hearing to provide his own records to rebut that evidence. The fact that he did not, and did not even deny making multiple personal calls, is telling. I found that the combination of hearsay evidence – as presented by a qualified law enforcement investigator – was sufficient when combined with the paper record evidence of the phone records, emails, and chat messenger screen shots.” (Italics added.)

B. Graney’s Writ Petition in the Trial Court

On December 24, 2014, Graney filed a petition for a writ of administrative mandamus in the superior court pursuant to Code of Civil Procedure section 1094.5. He asked the court to vacate respondents’ decision to terminate his employment on the grounds that he did not receive a “fair trial,” in that respondents did not produce Brasher for the hearing and relied on hearsay and unauthenticated evidence; respondents abused their discretion because the punishment was too severe, the decision was not supported by the findings, and the findings were not supported by the weight of the evidence; and respondents acted in excess of their jurisdiction. Respondents opposed Graney’s petition.

The matter was heard on January 5, 2016. By written order dated January 6, 2016, the trial court denied Graney’s petition. The court concluded that Graney received a fair trial, noting that respondents were not obligated to call Brasher as a witness, the administrative findings and decision to uphold the termination were based on documentary evidence that was properly authenticated, the emails, texts, online chats, and phone records were not inadmissible hearsay, the photographs of such documents were admissible secondary evidence, and to the extent respondents relied on some hearsay, it was supplemental to non-hearsay evidence. The court further found there was sufficient evidence to support the findings and that respondents acted within their authority in terminating Graney’s employment.

Judgment was entered, and this appeal followed.

II. DISCUSSION

As mentioned, Graney contends (1) the administrative findings and decision to uphold the termination of his employment were based exclusively on hearsay evidence and unauthenticated documents; (2) the trial court employed an incorrect legal standard in reviewing the evidence; and (3) without Brasher’s hearsay statements and documents, there was insufficient evidence to uphold the administrative decision.

A. Evidentiary Arguments

Respondents’ Post-Deprivation Hearing Procedure provides that “formal rules of evidence are not applicable” to administrative hearings conducted under its provisions. Instead, hearing officers are to be guided by the California Administrative Procedures Act (APA), and the weight given to the evidence shall generally be in accordance with its reliability. The APA in turn provides: “The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided.” (Govt. Code, § 11513, subd. (c).)

Graney nonetheless argues that the allegations sustained against him were based solely on inadmissible evidence. Specifically, he contends that Brasher’s statements and materials that were introduced through Lieutenant Partika at the hearing were hearsay, the documents were not properly authenticated, and certain photographs or screenshots were not proper secondary evidence. His arguments are meritless.

1. Hearsay

The APA states: “Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” (Govt. Code, § 11513, subd. (d).) The question, essentially, is whether there was evidence other than inadmissible hearsay to support the sustained allegations.

a. Work Email and POST Access

Brasher told Lieutenant Partika that Graney gave her the password to his work email and that she sent emails on his behalf. Assuming arguendo that her statements were offered for their truth and constituted inadmissible hearsay, there was ample other evidence to support the allegation.

First, Brasher provided Lieutenant Partika with examples of emails she claimed to have drafted or edited for Graney. This evidence was not offered for the truth of the statements in the emails, but as circumstantial evidence that she had access to Graney’s work email account and that Graney had given her his password. Similarly, Brasher provided email chains from her personal email account, as well as photos of cell phone text messages and screenshots of Facebook messages, in which Graney asked Brasher to check his work email or author emails on his behalf. These requests by Graney were not hearsay, but circumstantial evidence of his knowledge that she had access to his email account and intended for her to write work emails for him. (And even if they were hearsay, Graney’s statements would be admissible as party admissions. (Evid. Code, § 1220.))

Second, Lieutenant Partika described Brasher’s knowledge of specific details contained in a confidential UCSF PD crime blog, which she would not have had without Graney providing her access. Her statement of this knowledge was not offered for its truth, but as circumstantial evidence that she knew matters that otherwise she could not have known.

Third, Brasher told Lieutenant Partika what she knew to be Graney’s email password, and Graney admitted that it was, in fact, his password. She even demonstrated her ability to remotely access Graney’s POST account using Graney’s POST password, which was the same as his work email password. Partika’s observation of Brasher’s ability to gain access to sensitive law enforcement information using Graney’s password was not hearsay.

Ample evidence also supported the conclusion that Graney provided Brasher access to the POST portal and that Brasher completed training for him. In the record of the Facebook chat conversation, Brasher told Graney, “closing 100 other windows from your stupid ridiculous training.” Lieutenant Partika explained that, during the process of POST training, a number of pop-up windows appear. Brasher’s Facebook statement was therefore not necessarily offered for its truth (that she was actually closing the training windows), but as circumstantial evidence of her familiarity with the POST learning portal – and Graney’s knowledge of her access – from which it may reasonably be inferred that Graney had provided Brasher with his password.

In addition, Lieutenant Partika found corroboration for Brasher’s assertion that the Facebook chat conversation pertained to a training Brasher completed on Graney’s behalf: an automated email, sent to respondents’ training coordinator when the POST training was completed online, was sent at the same time as Brasher’s Facebook communication.

Further, Brasher demonstrated her ability to access Graney’s POST account. While on the phone with Lieutenant Partika, she entered Graney’s password into the online POST training program, accessed the certificates for the trainings she had completed for him, printed out a certificate, and sent it to Partika, along with a list of the trainings she completed on Graney’s behalf. The documents were not offered for the truth of the content of the certificate or the names of the trainings she completed, but as evidence of her access to the POST portal and ability to complete the trainings for Graney.

b. Excessive Personal Phone Calls While on Duty

Brasher told Lieutenant Partika that Graney spoke with her on his cell phone while he was on duty. At the hearing, this allegation was established not only by Brasher’s statements to Partika, but also by Brasher’s cell phone records and respondents’ documents indicating Graney’s work assignments, which together showed excessive calls from Graney to Brasher while Graney was on duty.

Arguably, Brasher’s cell phone records were offered for the truth – that calls between Graney’s phone and Brasher’s phone were made at certain times and continued for certain durations – as were the records indicating Graney’s work assignments at those times. The parties debate whether the records would fall within the business records or official records exceptions to the hearsay rule. (Evid. Code, § 1271; People v. Zavala (2013) 216 Cal.App.4th 242, 246–248; Evid. Code, § 1280.) But even if the records were hearsay, the hearing officer based his decision on more than just these records and Brasher’s statements.

As the hearing officer noted, Graney admitted that he spoke with Brasher on the phone while he was on duty, and he offered no evidence that her phone records were fraudulent or unreliable, or that he had spent less time on the phone than the records stated. The hearing officer could properly consider Graney’s failure to explain the evidence respondents presented. (See also Evid. Code, § 413.) Given the totality of the evidence, it cannot be said that the allegation of excessive cell phone use was based solely on inadmissible hearsay.

c. Failure to Cooperate in the Investigation

As to Graney being evasive and uncooperative during the internal investigation, the finding was not premised on the substance of Brasher’s statements or documents, but on Lieutenant Partika’s own percipient observations and perceptions of Graney’s refusal to cooperate during the investigation, including Graney’s demeanor and his claims of “I don’t know,” “I don’t recall,” and “I don’t remember” in response to Partika’s questions.

In the final analysis, each of the sustained allegations was supported by evidence that Graney fails to establish as inadmissible hearsay. Any hearsay statement merely supplemented or explained the evidence pointing decidedly to his numerous violations of policy and orders. Furthermore, the hearing officer specifically noted that he weighed the evidence according to its degree of reliability, consistent with the procedure for Graney’s post-deprivation hearing, and Graney fails to establish that the hearing officer placed too much weight on the alleged hearsay. He fails to demonstrate error.

2. Authentication

A “writing” must be authenticated before it can be admitted into evidence. (Evid. Code, § 1401.) Authentication is a preliminary fact, established by evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it to be. (Evid. Code, § 403, subd. (a)(3); § 1400.)

The trial court concluded that the documents submitted by respondents were properly authenticated. Graney contends the court erred, claiming there was no authentication of Brasher’s emails, cell phone records, and photographs of a screen shot of a monitor or cell phone display.

Graney’s argument is meritless, for several reasons. First, his argument under Evidence Code section 1400 is irrelevant, since Evidence Code section 1400 did not apply to the hearing.

Second, Graney fails to establish a lack of authentication. He argues that the evidence did not establish who Brasher was, Brasher’s statements were not given under oath, the materials she provided were not originals, and Lieutenant Partika did not examine the cell phones or computers on which the data was allegedly stored or obtain records directly from Brasher’s email server, Facebook site, or cell phone provider, so there is no way to verify the accuracy, reliability, or authenticity of the materials. But Partika could authenticate the documents as apparent emails, a Facebook communication, and cell phone records that he personally received from someone identifying herself as Brasher, which bore her name or contained information consistent with being actual emails, a Facebook communication, and records of calls between Brasher and Graney, and which were corroborated by other documents and information. Indeed, Partika testified that, based on his experience, it was highly unlikely Brasher could have fabricated the documents under the circumstances. While this may not prove the documents were authentic, Graney does not present any legal authority suggesting it falls short of the low threshold requirement for authentication.

Third, even if the documents were not authenticated to the extent required by Evidence Code section 1400, the hearing officer indicated that he gave weight to the different kinds of evidence according to its reliability, and Graney does not show that the hearing officer gave this evidence more credence than it deserved. He therefore fails to establish that the consideration of the documents was prejudicial.

3. Secondary Evidence

The trial court ruled that the photos of the e-mails, texts, and online chat screens were admissible secondary evidence because Lieutenant Partika’s testimony showed they were fair and accurate representations of what they were purported to be. (Citing Evid. Code, §§ 1522, 1523; People v. Goldsmith (2014) 59 Cal.4th 258, 267–268 [a photograph is typically authenticated by showing it is a fair and accurate representation of the scene depicted].) Graney contends this was error.

Although the parties do not acknowledge this, the trial court combined two thoughts here – that the photographs were properly authenticated through the testimony that the documents were what they purported to be (Evid. Code, § 1400 et seq.; Goldsmith, supra, 59 Cal.4th at pp. 267–268), and that the photographs were admissible secondary evidence of the content of the underlying e-mails, texts, screen shots, and so forth (Evid. Code, § 1520 et seq.). We have already addressed the authentication issue.

To the extent Graney urges that the photographs were not proper secondary evidence, his argument is unavailing. First, the original document rule set forth in Evidence Code section 1520 et seq. did not apply at Graney’s administrative hearing. Second, Graney did not object at the hearing under Evidence Code section 1520. Third, he does not establish prejudicial error.

In sum, Graney fails to demonstrate that the administrative findings and decision to uphold his dismissal were based on improper evidence.[1]

B. Sufficiency of the Evidence

The trial court concluded that respondents proved the allegations against Graney based on the testimony of Lieutenant Partika, who explained his investigation and its results, and the authenticated documentary evidence. Graney contends the court applied an incorrect standard of review, and that the evidence was insufficient to uphold the administrative findings and the decision to terminate his employment.

When an agency’s decision substantially affects a fundamental vested right, the trial court reviewing the decision under Code of Civil Procedure section 1094.5 must exercise its independent judgment on the evidence and find an abuse of discretion if the agency’s findings are not supported by the weight of the evidence. (Code Civ. Proc., § 1094.5, subd. (c); Strumsky v. San Diego County Employees’ Retirement Association (1974) 11 Cal.3d 28, 44.) There is no dispute Graney had a fundamental property right in his continued employment with the UCSF Police Department, and that the trial court in this case was required to exercise its independent judgment.

Here, the trial court explicitly stated in its order denying Graney’s petition that the independent judgment standard applied. The court observed: “The issues are whether the Regents acted in excess of jurisdiction, whether the Regents abused its discretion and whether a fair hearing was afforded. (See Code Civ. Proc., § 1094.5.) Graney enjoyed a right to be free from termination absent just cause. Thus, the court applies its independent judgment in reviewing the administrative proceedings. (See Strumsky v. San Diego County Employees Retirement Ass’n (1974) 11 Cal.3d 28, 44.)” (Italics added.)

Graney nonetheless contends the trial court failed to apply the independent judgment standard. He points to the following statement by the court a few pages later in its written order: “To the extent Graney’s claims can be construed as a substantial-evidence argument, they fail. Substantial cognizable evidence supports each [of] the Regents’ findings.” (Italics added.) The court also rejected Graney’s argument that the Regents abused its discretion in terminating Graney, because “the finding amount[s] to substantial evidence that Graney lacked credibility and was not trustworthy.”

Taking the order as a whole, we conclude that the trial court was aware of and applied the appropriate legal standard, and that its reference to “substantial evidence” was merely a way of referring to Graney’s claim concerning the sufficiency of the evidence – in this case, whether the “weight” of the evidence supported the administrative decision.

At any rate, there was no prejudicial error. When the independent judgment standard applies in the trial court, we review the court’s findings and decision for substantial evidence. (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 218.) Here, substantial evidence supported the court’s findings and decision, as set forth ante in our discussion of the evidence supporting each sustained allegation. Moreover, even if we were obligated to conduct an independent review (as Graney asserts in his opening brief), we would conclude that the weight of the evidence – indeed, overwhelming evidence – supported the findings and decision.

III. DISPOSITION

The order is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

SIMONS, J.