Filed 12/20/19 P. v. Schmidt CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

LONNIE G. SCHMIDT,

Defendant and Appellant.

A155789, A155911

(Solano County

Super. Ct. No. FCR317874)

While representing himself, defendant pleaded no contest to theft by false pretenses and attempting to file a false or forged instrument. Pursuant to a plea agreement, defendant was sentenced to two years four months in state prison. We affirm.

I. BACKGROUND

In a complaint, filed by the Solano County District Attorney, defendant was charged with two counts of obtaining money, labor, or property by false pretenses (Pen. Code, § 532, subd. (a)) and three counts of attempting to file a false or forged instrument (§ 115, subd. (a)). The complaint further alleged that one of the thefts by false pretenses resulted in the acquisition and destruction of property worth more than $200,000. (Former §12022.6, subd. (a)(2).)

The trial court granted defendant’s Faretta motion to represent himself.

Pursuant to a plea agreement, defendant pleaded no contest to one count of attempt to file a false or forged instrument (count 4) and one count of obtaining money, labor, or property by false pretenses (count 5). In exchange, the trial court dismissed the remaining counts, struck the related allegation, and sentenced defendant to a term of two years four months in state prison to run concurrent with sentences out of Sacramento and Santa Clara Counties. At a later hearing, the court determined defendant’s credits exceeded the sentence imposed, and defendant was ordered released immediately pending other holds.

II. DISCUSSION

After defendant appealed, counsel was appointed to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, setting forth a statement of the case, and a summary of the facts, and requesting this court conduct an independent review of the record. Under Anders v. California (1967) 386 U.S. 738 (Anders), however, counsel has identified three potential appellate issues as follows: (1) Did the trial court err by not advising defendant of the maximum sentence he faced before allowing him to represent himself? (2) Did defendant knowingly and voluntarily enter his “guilty” pleas? (3) Was defendant fraudulently induced to enter his “guilty” pleas because the district attorney offered, as part of the plea bargain, to dismiss the section 12022.6, subdivision (a)(2) enhancement, which had been repealed by its own terms before the offer was made?

Following review of the issues raised by defense counsel, we asked the parties for additional briefing on questions Nos. 1 and 3. Defense counsel filed a supplemental brief on behalf of defendant answering both questions in the affirmative. The Attorney General, on the other hand, argued the trial court committed no error.

Defense counsel also advised defendant he could submit a supplemental brief within 30 days, raising any issues he wishes to call to the court’s attention. We granted defendant’s request for an extension of time. Defendant has filed a supplemental brief asserting the judgment is void because the trial court proceeded in the absence of jurisdiction, the felony complaint failed to give him notice of the charges, he was not given a copy of the complaint or any discovery before entering his plea, the trial court erred by failing to dismiss the time-barred complaint upon timely demurrer, and the court prejudicially erred by failing to exercise its discretion to appoint advisory counsel.

We have independently reviewed the entire record, including those sections relating to the issues raised by defense counsel under Anders, and those raised by defendant in his supplemental brief and have found no arguable issue. We will first address the Anders issues followed by the issues raised in defendant’s supplemental brief.

A. Anders Issues

1. The Court Was Not Required to Advise Defendant of the Maximum Sentence

Defendant asserts the trial court was required to advise him of the maximum sentence before allowing him to represent himself. In People v. Lopez (1977) 71 Cal.App.3d 568 (Lopez), the appellate court set forth suggested advisements and inquiries for courts to ensure the knowing and voluntary wavier of counsel. Lopez suggests the court provide the following three general categories of advisement: (1) ensuring the defendant’s awareness of the dangers and disadvantages associated with self-representation; (2) inquiring into the defendant’s intellectual capacity; and (3) informing the defendant that he or she cannot later claim inadequacy of representation. (Id. at pp. 572–574.)

Here, the trial court covered all three categories. Initially, defendant was made aware of the dangers and disadvantages of representing himself by signing and initialing a Faretta waiver form. The court then spent considerable time inquiring into defendant’s education, prior courtroom experience representing himself, and explaining to him the dangers and disadvantages of waiving counsel in favor of self-representation.

Defendant informed the court he had two years of junior college and “training in the law” through self-education. He also told the court he represented himself in a Sacramento County case from 2013 through 2015 and in a Santa Clara County case in 2016. In the Sacramento case, defendant participated in a five-month jury trial in which he was found guilty and received a 28-year sentence and, in the Santa Clara case, he pled no contest.

The court began explaining the pitfalls of self-representation with the admonition: “A man who is his own lawyer has a fool for his client.” The court elaborated that “since the 1600’s, this has been considered one of the worst choices a person can make when their fate is up.” Additionally, the court apprised defendant he would be opposing a lawyer with legal training who had “likely done dozens, if not hundreds of criminal cases,” and furthermore, the court could not assist defendant during trial by answering questions about legal procedures or evidence. The court also informed defendant he would be held to the same standards as a lawyer, and if he did a poor job representing himself, he would not be allowed to appeal “on the fact that you made a mistake.” But if he had a lawyer, and the lawyer provided ineffective assistance, defendant could appeal and would be entitled to a new trial, provided counsel was ineffective. The court asked defendant if he understood the court’s position “that this is universally regarded as a terrible idea.” Defendant indicated he understood. Regardless of defendant’s opinion on the quality of the public defender’s representation, the court reiterated “having a lawyer is better than no lawyer,” and defendant should “at least entertain the possibility that [his] opinion on these legal matters may be incorrect.” The court further explained defendant could file a motion to replace his counsel as an “in-between step between representing yourself.” Defendant declined the offer, still wishing to represent himself. The court even suggested continuing the matter for two weeks to give defendant the opportunity to discuss the cases with his attorney. Defendant unequivocally rejected the court’s suggestion.

Though the record demonstrates defendant understood the dangers and disadvantages of self-representation, nor was he a neophyte in the criminal justice system, he maintains the trial court had a duty to advise him of the maximum penalty he faced before allowing him to represent himself, and the failure to do so constituted structural error requiring reversal. Citing People v. Ruffin (2017) 12 Cal.App.5th 536, 544, defendant claims there is a split of authority as to whether the court is required to advise a defendant of the maximum penal consequences of conviction before allowing a defendant to represent himself/herself, but urges us to follow those cases holding that before allowing a defendant to represent himself/herself, the court must advise a defendant of the maximum penalty. Defendant relies on People v. Jackio (2015) 236 Cal.App.4th 445 (Jackio) and People v. Noriega (1997) 59 Cal.App.4th 311 (Noriega); however, both cases are distinguishable from the instant matter.

In Jackio, the defendant, before trial, decided to represent himself which “prompted the trial court to warn defendant of the dangers of self-representation, including the possibility that he faced, in the trial court’s words, ‘life in prison’ ” but he was not advised of the full range of punishments. (Jackio, supra, 236 Cal.App.4th at p. 450.) While the court determined the most reasonable solution is to require the trial court to advise a defendant wishing to represent himself at trial of the maximum punishment, under the circumstances of the case, the court concluded the Faretta colloquy did not violate defendant’s Sixth Amendment right. (Jackio, at pp. 454–455.) Here, in contrast, defendant decided to represent himself prior to his plea of no contest and accepted the negotiated disposition of two years eight months, which was later recalculated to two years four months, to run concurrent with his Sacramento County and Santa Clara County sentences. Importantly, at the time of the plea negotiations, defendant was, in fact, informed of the maximum penalty of three years eight months when the prosecutor said, “Part of our negotiations, Your Honor. The maximum is three years, eight months.” Moreover, defendant’s waiver of constitutional rights form, signed and initialed by him, also reflects the maximum sentence of three years eight months. After being informed of the maximum sentence, and if he so desired, defendant certainly had the option of requesting counsel and withdrawing his Faretta waiver. He chose not to.

Noriega, too, is distinguishable from this appeal because the court there only conducted a cursory review of the dangers of self-representation, rather than giving “specific warnings and advisements regarding the risks and dangers of self-representation.” (Noriega, supra, 59 Cal.App.4th at p. 319.) The appellate court noted a myriad of failures by the trial court: “The court did not inquire whether appellant understood the charges against him and the potential penal consequences if he lost at trial. The court did not warn him the trial court would treat him like any other attorney and that he could expect no special treatment or advice from the court during his trial. The court did not point out appellant’s lack of legal skills and the fact his opponent at trial would be both experienced and prepared. The court did not advise appellant he had no right to either standby, advisory or cocounsel in the event he decided to represent himself. [Citations.] In short, the trial court did not give any necessary warnings to assure itself appellant was making an informed and intelligent decision to represent himself despite the disadvantages and risks of that choice.” (Id. at pp. 319–320.) Here, in contrast, the trial court, as described above, conducted a thorough Faretta colloquy with defendant covering the three general categories set out in Lopez.

Defendant acknowledges that in People v. Bush (2017) 7 Cal.App.5th 457 (Bush), the court was not persuaded that “a pretrial waiver of counsel cannot be valid if the court did not specifically advise the defendant of all possible penal consequences of the charged offenses.” (Id. at p. 473.) While the court noted the better practice would be to inform a defendant of the maximum sentence, applying the Chapman standard, it concluded, “if there was demonstrable error, such error here was harmless.” (Bush, at pp. 473, 477; see People v. Conners (2008) 168 Cal.App.4th 443, 447–449, 455 [Faretta waiver valid where defendant was not advised of his maximum exposure until two weeks after the court granted his Faretta motion].)

We need not decide whether Jackio, Noriega, or Bush control because in People v. Daniels (2017) 3 Cal.5th 961, our Supreme Court, taking a holistic approach to Faretta waivers, found there is no “prescribed script or admonition that trial courts must use to warn” defendants of the dangers of self-representation; the record must be examined as a whole. (Daniels, at pp. 977–978.) After reviewing the trial court’s Faretta admonition, and applying the three Lopez standards, the Supreme Court rejected the defendant’s argument the trial court’s self-representation advisement was “inadequate because it did not review the elements of the charges, possible defenses, or possible punishments besides the death penalty—or confirm that counsel had done so.” (Daniels, at p. 979.) Instead the court concluded the defendant’s waiver of his right to counsel was voluntary, knowing, and intelligent. (Id. at p. 980.) In rejecting defendant’s contention, the court specifically noted, “Although an ‘exploration into . . . possible defenses and possible punishments’ may be useful to help a defendant understand ‘just what he is getting himself into’ [citation], it is not required for a knowing and intelligent waiver of counsel under Faretta.” (Id. at p. 979, citing People v. Riggs (2008) 44 Cal.4th 248, 277.)

Thus, under the holistic approach adopted in Daniels, before allowing defendant here to represent himself, the trial court was not required as a matter of law to advise defendant of all the possible penal consequences, including the maximum possible sentence, before accepting his waiver. And as previously delineated, the court engaged in a detailed colloquy with defendant, covering all three Lopez categories before accepting his Faretta waiver.

2. Defendant Knowingly and Voluntarily, Without Inducement, Entered His Pleas

We next address two interrelated issues—whether defendant knowingly and voluntarily entered his pleas, and whether he was fraudulently induced to enter them. Defendant has submitted a certificate of probable cause signed by a judge. As a result, he may challenge the validity of his plea.

At the outset, we conclude defendant knowingly and voluntarily entered his pleas. He signed and initialed a waiver of rights form which advised him of the constitutional rights he would be giving up and the terms of the plea bargain. Evincing defendant carefully read the waiver form, he scratched out that he was giving up his right to appeal, and interlineated, “I do not give up my right to appeal.” After defendant completed the waiver form, the trial court went over the two charges to which defendant would be entering pleas and the agreed upon sentence. The court also advised defendant of his constitutional rights, made sure defendant understood each of those rights, and obtained defendant’s waiver of each right. Moreover, in response to a court question, defendant indicated he was of sound mind, and was not under the influence of alcohol, narcotics, drugs, or any other substance that would impair his judgment.

Nonetheless, defendant contends his plea was not free and voluntary because he was fraudulently induced to plead no contest by the prosecutor’s promise to dismiss the section 12022.6, subdivision (a)(2) enhancement which had been repealed (sunset) by its own terms before the offer was made. This claim fails, however, because the enhancement was operative at the time defendant committed his offenses and was therefore applicable to the offenses.

In the matter of In re Estrada (1965) 63 Cal.2d 740, 744, our Supreme Court considered the retroactive application of a statutory amendment reducing the punishment for the offense of escape without force or violence. In the absence of any textual indication of the Legislature’s intent, the court inferred the Legislature intended for the new penalties, rather than the old, to apply, including “to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Id. at pp. 744–745.) Nonetheless, as the court explained in People v. Conley (2016) 63 Cal.4th 646: “In [In re ]Pedro T. [(1994) 8 Cal.4th 1041] . . . we concluded that the Estrada presumption did not govern the interpretation of a ‘ “sunset” ’ provision attached to legislation increasing the maximum punishment for vehicle theft. [Citation.] . . . We reaffirmed that, ‘[o]rdinarily when an amendment lessens the punishment for a crime, one may reasonably infer the Legislature has determined imposition of a lesser punishment on offenders thereafter will sufficiently serve the public interest.’ ” (Conley, at p. 657.) However, as relevant here, the court concluded that “ ‘[i]n the case of a ‘sunset’ provision attached to a temporary enhancement of penalty, the same inference cannot so readily be drawn.’ ” (Ibid.) The court further reasoned that “giving controlling weight to the Estrada presumption would have ‘practical effect[s]’ the Legislature could not have intended: It would both undermine ‘[t]he utility of a three-year legislative experiment in enhanced penalties’ and ‘provide a motive for delay and manipulation in criminal proceedings.’ ” (Ibid.)

Defendant appears to recognize that In re Pedro T. undermines his claim but contends the California Supreme Court’s subsequent decision in People v. Nasalga (1996) 12 Cal.4th 784 supports his position. In Nasalga, the Supreme Court considered whether a 1992 amendment to former section 12022.6, subdivisions (a) and (b), to increase the amount of the property loss required for a one-year enhancement and to increase the loss required for a two-year enhancement, applied to a person whose conviction for grand theft was not final at the time the amendment became operative. (Nasalga, at p. 787.) The court held the amendment was to be applied retroactively to the defendant who had already committed the crimes but whose judgment was not final, so he could receive the benefit of the amended statute. (Id. at pp. 797–798.) Nasalga, however, is inapposite because it did not involve, as here, a sunset provision; rather that case simply held an ameliorative amendment applied retroactively to a defendant with nonfinal judgments. In contrast, the sunset structure of the version of former section 12022.6 in effect when defendant committed his crimes indicated the Legislature’s intent to have that enhancement effective for offenses committed between 2010 and 2017, and defendant committed his offenses during that period. And importantly, unlike Nasalga, the Legislature did not enact a later ameliorative amendment negating the enhancement. It just allowed the enhancement to sunset. Because defendant was thus subject to imposition of the section 12022.6 enhancement, defendant benefited from the prosecution’s offer to dismiss the enhancement and was not unfairly induced to enter into the plea agreement.

In sum, we conclude defendant knowingly and voluntarily, without inducement, entered his pleas.

B. Issues Raised in Defendant’s Own Supplemental Brief

1. Absence of Jurisdiction

The first two issues defendant identifies are the same. He maintains the trial court committed fundamental constitutional error by proceeding in the absence of jurisdiction and, therefore, the judgment is void. Defendant apparently contends the district attorney could not proceed by way of a felony complaint but instead was required to file an information. As a result, defendant argues, he was convicted and sentenced pursuant to an unauthorized pleading by order of the court acting in the absence of authority.

A complaint may be used as an accusatory pleading when defendant pleads guilty or no contest, provided the complaint contains the same allegations required for an indictment or information. (§§ 806, 859a.) Defendant pled no contest before the preliminary hearing; accordingly, the district attorney did not have to file an information as defendant argues. (§ 859a.) Indeed, defendant’s own authority recognizes this: “All felonies shall be prosecuted by indictment or information, except as provide in Section 859a.” (§ 737; see §§ 682, subd. (4), 949; 4 Witkin, Cal. Criminal Law (4th ed. 2012) Pretrial Proceedings, § 177, p. 432 [defendant who pleads guilty or nolo contendere before committing magistrate may be prosecuted for felony on a complaint].)

2. Failure to Provide Notice of the Charges and to Give Defendant a Copy of the Complaint

Defendant next contends he told the court he was not given a copy of the complaint or any discovery before entering his plea. The trial court acknowledged it might be an issue if he had not received discovery. Because the complaint is “bogus and without authority,” defendant argues it fails to give him notice of the charges. He asserts the court’s failure to provide him with a copy of the complaint prior to accepting his “guilty” plea is a violation of his constitutional due process rights.

Defendant cites no apposite legal authority in support of his contention that the failure to provide him with a copy of the complaint violates his right to due process. In any event, the trial court read the complaint to him at his arraignment, and defendant admitted he received a copy of the complaint in his brief and in a letter to the district attorney. Moreover, defendant did not tell the court at the time of his plea that he had never received a copy of the complaint, as he now argues in his brief. Indeed, at the time of his plea acceptance, he filed a motion to dismiss the complaint that attached his declaration under penalty of perjury stating, “I have read the complaint,” and the complaint is attached to his declaration. The record also reflects defendant received “a stack” of discovery from the public defender at his arraignment.

3. Failure to Dismiss Defendant’s Complaint

Defendant filed a demurrer to the complaint which was “denied” by the trial court. Because the complaint alleges the offenses were discovered on January 19, 2012, and he was not arraigned on the felony complaint until April 6, 2018, defendant argues a three-year statute of limitations applies and, thus, the complaint should have been dismissed by the court upon his timely demurrer as legally time barred.

He also argues there is no evidence of an arrest warrant having issued which met the requirements of section 804, subdivision (d) to describe him with the particularity required of an indictment, information, or complaint. He goes on to complain that the deputy district attorney’s declaration in support of the arrest warrant is “fatally defective” because of “want of subscription under oath as required by PC § 817[, subdivision] (b) and both state and federal constitutions [citations] and is therefore insufficient to support issuance of a valid arrest warrant.” According to defendant, “[a]bsent a[] valid arrest warrant, PC § 804[, subdivision] (d) fails to establish commencement of prosecution for purposes of tolling the statute of limitation in lieu of arraignment (§ 804[, subd.] (c)) pursuant to a felony complaint.”

First, most of these issues are not reviewable because defendant pled no contest. A statute of limitations bar to prosecution is not cognizable on appeal after a no contest plea, unless the accusatory pleading shows on its face that the statutory period had expired. (People v. Padfield (1982) 136 Cal.App.3d 218, 224–227.) Likewise, defendant cannot challenge the legality of his arrest after pleading no contest, because his plea admitted all matters essential to the conviction. (People v. DeVaughn (1977) 18 Cal.3d 889, 895–896.) Additionally, the issuance of a certificate of probable cause does not operate to expand the grounds upon which the appeal may be taken. (Id. at p. 896.)

Second, even on the merits, defendant’s claims would fail. The trial court found a four-year statute of limitations applied. The complaint alleged the offenses were discovered on January 19, 2012. As the district attorney argued below, the arrest warrant issued on November 24, 2015, within the statute of limitations. (§ 804, subd. (d).)

Defendant offers no authority establishing the statute of limitations is three years rather than four years. Defendant was charged with two offenses under section 532, subdivision (a) and three offenses under section 115, subdivision (a). The applicable statute of limitations appears to be four years for both offenses. (See § 801.5 [four-year statute of limitations for offense described in § 803, subd. (c)] & § 803, subd. (c) [offense involving fraud or breach of fiduciary obligation, including grand theft]; People [false pretenses is type of grand theft]; People v. Soni (2005) 134 Cal.App.4th 1510, 1518–1519 [four-year statute of limitations applied to violation of § 115, subd. (a)].)

As to defendant’s claim that the deputy district attorney’s declaration is inadequate for an arrest warrant under section 817, subdivision (b), that section applies to a declaration of probable cause by a peace officer in support of an arrest warrant before institution of any formal criminal proceedings. Here, it appears the arrest warrant was issued by the magistrate on the complaint under section 813, which provides the magistrate shall issue a warrant for arrest of the defendant when the magistrate is satisfied the complaint states a reasonable ground to believe a defendant has committed an offense. The complaint here was under oath and subscribed by the complainant. (§§ 804, subd. (d), 806, 813, subd. (a).)

Defendant further contends there is no evidence in the record of an arrest warrant issuing from the trial court which met the requirements of section 804, subdivision (d). While it is true there is no copy of the arrest warrant in the record, a demurrer lies only for defects appearing on the face of the accusatory pleading. (§ 1004.)

In short, because defendant has not shown the complaint is barred by the statute of limitations, he has not shown the trial court committed error by not dismissing the charges.

4. Failure to Appoint Advisory Counsel

Defendant contends the trial court prejudicially erred by failing to exercise its discretion to appoint advisory counsel. Defendant argues he had “very good reasons” for the appointment of counsel, and he “was not seeking a delay of the trial, and there is no evidence he requested advisory counsel for a manipulative purpose.” Based on his experiences representing himself in the prior Sacramento County and Santa Clara County cases in which he was unsuccessful, defendant maintains he needed help from advisory counsel in the instant matter with “motions, obtaining discovery, evidentiary rules and laying foundation for his evidence.”

There is no constitutional right to advisory counsel, and the decision whether to appoint advisory counsel is within the discretion of the trial court. (People v. Goodwillie (2007) 147 Cal.App.4th 695, 710–712.) Indeed, some courts have concluded in a noncapital case, a defendant who elects self-representation may not obtain reversal if the trial court refused to provide advisory counsel. (People v. Garcia (2000) 78 Cal.App.4th 1422, 1428–1431.)

Defendant appears to assert the trial court’s summary denial of his request without explanation demonstrated it did not exercise its discretion. He relies on People v. Crandell (1988) 46 Cal.3d 833, but in that case the court actually refused to exercise its discretion. In fact, on one occasion, the trial court in Crandell told the defendant “ ‘there is no such thing’ ” as advisory counsel. (Id. at p. 862.) On another occasion, the court said, “ ‘I wouldn’t appoint that kind of counsel anyway.’ ” (Ibid.) Nonetheless, the court concluded the error was harmless because the defendant had ably represented himself at trial, and it did not appear reasonably probable that different verdicts would have been returned had he received the advice of advisory counsel. (Id. at p. 866.)

Here, defendant has not demonstrated the trial court failed to exercise its discretion. When defendant requested advisory counsel “so that I can know the procedures that are proper,” the trial court said, “I’m going to deny the request for advisory counsel, sir. You have the right to have an attorney, if you choose to have one, but you indicated to me that you understood the pitfalls of representing yourself. This may in fact be one of those, but advisory counsel is denied.” The record shows the trial court exercised its discretion to deny defendant’s request, and defendant has not shown that the court abused its discretion. (See, e.g., People v. Bigelow (1984) 37 Cal.3d 731, 743–744 [refusal to appoint advisory counsel would have been abuse of discretion in capital case where defendant was Canadian citizen with ninth grade education and unfamiliar with California law, and the case involved complex, unsettled legal questions].) The trial court was aware defendant had represented himself in two prior cases, including a five-month trial, defendant had two years of college education, and though defendant contends it was a “complex five count fraud case,” he failed to establish the issues were particularly complex or the charges particularly serious so as to make the failure to appoint advisory counsel an abuse of discretion.

Lastly, defendant contends the court’s failure to appoint advisory counsel was error under the People v. Watson (1956) 46 Cal.2d 818, 836, harmless error standard. Though he argues “[a] more favorable result is dismissal of the case,” the grounds for dismissal he asserts are the same arguments raised and discussed above. Defendant has not shown dismissal (or any more favorable result) was likely if the trial court had appointed advisory counsel.

C. Other Issues

In addition to the issues we have already examined, pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record to see if any other arguable issue is present. We have found none.

By entering pleas of no contest, defendant admitted the sufficiency of the evidence establishing the crimes, and therefore is not entitled to review of any issue that goes to the question of guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.)

There were no sentencing errors.

III. DISPOSITION

Accordingly, the judgment is affirmed.

 

____________________________

MARGULIES, ACTING P. J.

WE CONCUR:

_____________________________

BANKE, J.

_____________________________

SANCHEZ, J.

A155789, A155911

People v. Schmidt