Filed 1/23/20 Taghilou v. County of L.A. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

FARAMARZ TAGHILOU,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES et al.,

Defendants and Respondents.

B289689

(Los Angeles County

Super. Ct. No. BC625724)

APPEAL from a judgment of the Superior Court for Los Angeles County, John P. Doyle, Judge. Affirmed.

Faramarz Taghilou, in pro. per.; and Patrick S. Smith for Plaintiff and Appellant.

Harold G. Becks & Associates, Harold G. Becks and V. René Daley for Defendants and Respondents.

Plaintiff Faramarz Taghilou appeals from a summary judgment entered in favor of defendants County of Los Angeles (County) and Detective Anderson of the Los Angeles County Sheriff’s Department on Taghilou’s complaint. The complaint alleged causes of action based upon allegations that County and Detective Anderson violated Taghilou’s civil rights and committed other torts by forcing him to register as a sex offender in 1996, and every year thereafter until 2015. The trial court found that all of Taghilou’s causes of action were time-barred, and therefore County and Detective Anderson were entitled to judgment as a matter of law. We agree, and affirm the judgment.

BACKGROUND

A. Plea Agreement Giving Rise to Obligation to Register as a

Sex Offender

In August 1988, Taghilou pleaded no contest to one count of oral copulation with a child under the age of 14, in violation of Penal Code section 288a, subdivision (c). As part of a plea agreement, he agreed to submit to a diagnostic study under section 1203.03 in exchange for a “three-year lid” (i.e., a maximum sentence of three years in prison). Before taking the plea, the prosecutor advised Taghilou regarding the rights he was waiving and the consequences of his plea. She did not, however, advise him that he would be required under section 290 to register as a sex offender for the rest of his life. After accepting the plea, the trial court ordered a probation and sentencing report to be submitted, after which Taghilou would be referred for a section 1203.03 study, followed by sentencing once the court received the section 1203.03 report.

The sentencing hearing was held on January 5, 1989. At the start of the hearing the court stated that it had read and considered the probation and section 1203.03 reports, and that it was prepared to place Taghilou on felony probation. The court asked the prosecutor and defense counsel if they had anything to state for the record. Defense counsel said he would submit “on the basis of the reports, the letters, and the conference we had in chambers.” The prosecutor responded, “Nothing further, your Honor, except to put on the record that the People will also be requesting a six-week supplementary, non-appearance report as proof of registration as a sex offender.”

The court then turned to Taghilou and said, “Mr. Taghilou, if you are prepared to accept the terms and conditions that I am going to state to you, you will be placed on three years formal probation to the court and the Probation Department.” The court recited the terms and conditions, including the following: “You must register within the next brief period of time as an offender, and I am requesting a six-week report from the probation officer. You will have to show him or her proof that you have registered and do so in a timely fashion, so he or she can have a report to the Court in six weeks time.” When the court finished reciting the terms and conditions, it asked, “Do you understand what I’ve had to say to you, sir? [¶] Do you have any questions as all?” Taghilou responded that he did not. The court asked Taghilou if he agreed to be bound by the terms and conditions, and Taghilou said that he was. The court then ordered that imposition of sentence be suspended and placed Taghilou on three years formal probation. Neither Taghilou nor his counsel objected to or challenged the condition that he register as a sex offender.

B. Expungement, Notice of Duty to Register, and Certificate of

Rehabilitation

In 1992, after Taghilou successfully competed probation without committing any further offense, his no contest plea was set aside, a plea of not guilty was entered, and the case was dismissed under section 1203.4. In August 1997, Taghilou petitioned for, and obtained, a certificate of rehabilitation, in which the trial court ordered and decreed that Taghilou “has been rehabilitated and is fit to exercise all the civil and political rights of citizenship (except as provided in Penal Code Section 4852.15[ ]), and by virtue thereof this court recommends that the Governor of the State of California grant a full pardon to [Taghilou].”

In the meantime, in 1996, Detective Anderson and another deputy from the sheriff’s department went to Taghilou’s home and told him he was required to register as a sex offender immediately, and every year thereafter. When Taghilou protested, and said that he was not required to register, the deputies threatened to arrest him if he did not register. Although he did not believe he was required to, Taghilou registered himself after the deputies’ visit, and continued to register himself every year until 2015.

C. Order Relieving Taghilou of Duty to Register

1. Motion to Vacate Conviction

In June 2012, 15 years after obtaining his certificate of rehabilitation, Taghilou filed a motion to vacate his conviction “on the ground that he was not adequately informed by the court of the direct consequence of his plea of no contest to the charge that he would have to register as a sex offender for life pursuant to Penal Code section 290.” In his declaration filed in support of the motion, Taghilou stated that he never was told that he would have to register, and that he would have to do so for the rest of his life, and therefore he did not register until he was contacted by the sheriff’s department in 1996. He explained that he did not experience “any repercussions or problems” arising from his registration until 2011, when a neighbor (who was a retired sheriff’s deputy) discovered his sex offender registration status and publicized it to other neighbors and Taghilou’s children’s school, which resulted in harassment and mistreatment of him and his children. Finally, he stated that he would not have accepted the plea offer had he known he would be required to register as a sex offender for the rest of his life.

Before the motion was heard, Taghilou submitted an additional brief, entitled “Defendant’s Authority for the Court to Order That the Defendant is No Longer Required to Register as a Sex Offender Pursuant to Penal Code Section 290.” In that brief, he stated the basis of his motion as follows: “The defendant asserts that the plea bargain that he entered into on this case . . . was violated after he completed his probation in 1992 and had his conviction expunged pursuant to Penal Code section 1203.4,” but subsequently was required to register as a sex offender under section 290. He stated that he was “seeking specific performance from the court for an order that he is no longer required to register as a sex offender pursuant to Penal Code section 290.”

At the hearing on the motion, Taghilou’s counsel acknowledged the prejudice to the prosecution if Taghilou’s plea were to be vacated (i.e., the ordinary relief for failure to advise of the consequences of a plea) so long after the plea was entered, since it likely would be impossible to bring him to trial so many years after the offense. Counsel explained that was the reason Taghilou sought specific performance of his plea agreement, which counsel represented would require vacating the requirement that Taghilou register as a sex offender because the sentencing court failed to inform him that he would be required to register for the rest of his life. The trial court indicated that it believed it did not have the discretion to vacate the registration requirement because registration was mandated by statute for the offense Taghilou committed. In any event, the court denied the motion, finding that Taghilou “did have scienter regarding registration and waited 25 years to vacate it; and he was told to register and the issue should have been raised then, register when, how often and so forth.”

2. Appeal From Denial of Motion to Vacate

Taghilou appealed from the denial of his motion to vacate. Division Seven of this Appellate District found that Taghilou’s plea agreement may not have included a lifetime registration requirement, and that the trial court erred in finding it did not have discretion “to relieve [Taghilou] of his obligation to continue to register as a sex offender.” (People v. Taghilou, supra, Slip Opn., p. 3.) Contrary to Taghilou’s assertions in the present case, the appellate court in Taghilou I did not conclude that Taghilou was not required to register at all. Instead, it focused on whether, under the plea bargain, Taghilou was required to register as a sex offender for the rest of his life. (See, e.g., id. at p. 19 [describing Taghilou’s argument that “lifetime registration was not a part of the plea agreement”]; id. at p. 24 [“Therefore, we must turn to the issue of whether the record shows the parties in this case ‘affirmatively or implicitly understood’ Taghilou’s obligation to ‘register . . . as an offender’ was, as he argued, limited in duration”].) The appellate court observed that “at the time of Taghilou’s plea, dismissal under section 1203.4 was a prerequisite to obtaining a certificate of rehabilitation; and a certificate of rehabilitation (§ 4852.01 et seq.) was a prerequisite to relief from the obligation to register as a sex offender pursuant to section 290 et seq.” (Id. at p. 27, italics in original.) Although that relief no longer is available to persons convicted of the offense at issue in Taghilou’s case due to subsequent amendments to the statutory scheme, the appellate court observed that parties to a plea agreement may agree or implicitly understand that the consequences of the plea will remain fixed despite amendments to the relevant law. (Id. at p. 23.) Therefore, the appellate court reversed the trial court’s denial of Taghilou’s motion and remanded the matter with directions to the trial court to “conduct an evidentiary hearing and determine whether there was an affirmative agreement or implicit understanding between the parties regarding the consequences of [Taghilou’s] plea, notwithstanding subsequent amendments to the statutory scheme.” (Id. at p. 29.)

3. Order on Remand

Proceedings were held on remand and, on March 27, 2015, the trial court in Taghilou I granted Taghilou’s motion. The minute order from that date states: “The previously [sic] order for defendant to register pursuant to Penal Code section 290 is ordered vacated with no objection from the People.” (Italics added.) On April 14, 2015, the court issued a signed order stating: “IT IS HEREBY ORDERED THAT THE CALIFORNIA DEPARTMENT OF JUSTICE remove defendant Faramarz Taghilou’s name, address, and photograph from the sexual offender registry and Megan’s law website given that Defendant Faramarz Taghilou is no longer required to register under Penal Code § 290 pursuant to the Court’s Order of March 27, 2015 on this case.”

D. This Lawsuit

On November 16, 2015, Taghilou filed an administrative claim for damages with the County of Los Angeles, asserting that he was damaged because the Los Angeles Sheriff’s Department required him to register under section 290 even though he was not required to do so. The record on appeal does not indicate when that claim was denied.

Taghilou filed the instant lawsuit on June 30, 2016 against County and Detective Anderson, as well as the State of California (which is not a party to this appeal). In the operative first amended complaint, he alleges seven causes of action.

The first two causes of action are for violation of civil rights under 42 U.S.C. section 1983 (the section 1983 claims). The first section 1983 claim alleges that County and Detective Anderson violated and/or deprived Taghilou of his rights under the First, Fourth, and Fourteenth Amendments to the United States Constitution by using the threat of force and arrest to force Taghilou to register as a sex offender in violation of the law and court orders. The second section 1983 claim alleges that County and Detective Anderson “maintain[] and permit[] an official policy and custom of permitting the occurrence of the types of wrongs” alleged in this case, through, among other things, “the deliberately indifferent training of its officers,” and “the practice of refusing to listen to persons who have court orders, [or] to look at [those] court orders . . . to determine the truth.”

The remaining causes of action allege state law claims. The causes of action for intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and violation of the Bane Act (Civ. Code, § 52.1) each are based on allegations that County and Detective Anderson used force to improperly require Taghilou to register as a sex offender. Finally, the cause of action for negligent entrustment alleges that County failed to properly train, supervise, and discipline employees, including Detective Anderson; negligently handled court documents, evidence, and witnesses; and negligently hired, retained, and assigned its employees, including Detective Anderson.

County and Detective Anderson moved for summary judgment on several grounds, including that the section 1983 claims were barred by the statute of limitations (Code Civ. Proc., § 340) and the state law claims were barred because Taghilou failed to timely comply with the Tort Claims Act (Gov. Code, § 911.2, 945.4). In arguing that all of the claims were time-barred, County and Detective Anderson contended that all of Taghilou’s claims accrued in 1996, when Detective Anderson is alleged to have told Taghilou that he was required to register as a sex offender immediately and for the rest of his life. They argued that Taghilou was required to file his administrative claim with County under the Tort Claims Act within six months of that event (Gov. Code, § 911.2), and to file his complaint alleging the section 1983 claims within one year. Because Taghilou did not file his administrative claim until November 2015, and did not file his lawsuit until June 2016, County and Detective Anderson contended that all of his claims were time-barred.

In his opposition to this argument, Taghilou argued that his section 1983 claims did not accrue until he successfully moved to have the registration requirement vacated, and therefore his claims, which were filed 15 months after the trial court in Taghilou I granted his motion, was not time-barred. Taghilou also argued that his state law claims were not time barred under the Tort Claims Act because those claims also did not accrue until the order vacating the requirement to register was issued; he did not address the fact that his administrative claim was filed more than six months after that order was issued.

The trial court granted the motion for summary judgment on the ground that it was time-barred. The court rejected Taghilou’s argument that none of the claims accrued until the Taghilou I trial court issued its order vacating the registration requirement. But the court found that, even if Taghilou were correct, the claims were barred because the complaint was filed more than a year after that order was issued, and the administrative claim was submitted more than six months after the order. The court entered judgment in favor of County and Detective Anderson, from which Taghilou timely filed a notice of appeal.

DISCUSSION

As best we can discern, Taghilou’s argument on appeal is as follows. Under his plea agreement, he never was required to register as a sex offender. However, even though he knew he was not required to register when Detective Anderson “forced” him to do so in 1996, his causes of action against the detective and County did not accrue until he could successfully bring a cause of action against them, and he could not successfully bring a cause of action until he obtained the court order in Taghilou I stating that he no longer was required to register. In any event, the claims Taghilou alleged constituted continuing torts that continued until he obtained that court order. Therefore, Taghilou’s causes of action, which were filed within two years of the order vacating the registration requirement, were not time-barred.

In making this argument, Taghilou misconstrues both the facts and the law. As we discuss below, contrary to Taghilou’s argument, he was required to register as a sex offender following his plea agreement; the trial court in Taghilou I merely found that he no longer was required to do so. That finding could only have been based upon a finding that the plea agreement Taghilou entered into in 1988 contemplated that he would remain subject to the law that existed at the time of the agreement, which law then provided that a person convicted of an offense requiring sex offender registration who successfully obtained a certificate of rehabilitation under section 4852.01 et seq. was relieved of the requirement to register as a sex offender. Since Taghilou obtained a certificate of rehabilitation in 1997, his claims (to the extent they are based upon County and Detective Anderson allegedly “forcing” him to register when he was not required to do so) accrued at that time. The fact that Taghilou waited 15 years to obtain a court ruling establishing that he no longer was required to register did not toll the statute of limitations on his claims. Similarly, the fact that he was “forced” to register every year did not make his claims continuing torts because neither County nor Detective Anderson did anything to prevent him from establishing in 1997 that he no longer was required to register. Accordingly, the trial court in this case correctly found that Taghilou’s section 1983 claims, filed in 2016, were barred by the one-year statute of limitations in effect in 1997, and that Taghilou’s state law claims were barred because Taghilou’s administrative claims, filed in 2015, were not filed within six months from when they accrued in 1997.

A. Taghilou Had a Duty to Register as a Sex Offender Until 1997

Taghilou asserts in his appellant’s opening brief that, as part of his plea agreement, he was not required to register as a sex offender at any time. He is mistaken.

As noted, at the sentencing hearing in the criminal proceeding, the prosecutor indicated that Taghilou was required to register as a sex offender under the plea agreement, since she asked the court to order a non-appearance report in six weeks to show proof of registration as a sex offender. At that same hearing, the sentencing court recited the terms and conditions of probation, which included that Taghilou must register as a sex offender, and Taghilou agreed to be bound by those terms and conditions. While Taghilou is correct that neither the prosecutor nor the court advised him of the registration requirement at the time of his plea, he waived any claim of error for that failure to advise when he failed to object to the sentencing court’s order that he register as a sex offender as a term and condition of probation. (People v. McClellan (1993) 6 Cal.4th 367, 377 (McClellan).)

Moreover, even if the record did not expressly contradict Taghilou’s implied assertion that the parties agreed as part of the plea bargain that he would not be required to register, any such agreement would not have been permitted under the law. As our Supreme Court has explained, “sex offender registration is not a permissible subject of plea agreement negotiation; neither the prosecutor nor the sentencing court has the authority to alter the legislative mandate that a person convicted of [one of the offenses enumerated in section 290] shall register as a sex offender pursuant to the provisions set forth in section 290.” (McClellan, supra, 6 Cal.4th at p. 380.)

Nevertheless, while the plea agreement could not (and clearly did not) include an agreement that Taghilou did not need to register at all, it could have included an express agreement or implied understanding that Taghilou could have that requirement vacated under certain conditions. At the time of Taghilou’s conviction and sentencing, former section 290.5 provided that persons required to register as a sex offender could petition for a certificate of rehabilitation and, if he or she received such a certificate, he or she would be relieved of any further duty to register as a sex offender. (Stats. 1961, ch. 1819, § 1, p. 3866 (former section 290.5).) This law was amended in 1996, however, to make it inapplicable to persons convicted of certain sex offenses, including the offense for which Taghilou was convicted. (Stats. 1996, ch. 129, § 1.) Although that amendment ordinarily would apply to those previously convicted of an enumerated offense under a plea agreement (see Doe v. Harris (2013) 57 Cal.4th 64, 66 [“the general rule in California is that the plea agreement will be ‘“deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy”’”]), the California Supreme Court has held that parties to a plea agreement may “affirmatively agree or implicitly understand the consequences of a plea will remain fixed despite amendments to the relevant law” (id. at p. 71).

In Taghilou I, the appellate court observed that the conduct of the parties, particularly the prosecutor’s lack of objection to Taghilou’s requests for expungement and a certificate of rehabilitation, indicated that the parties may have agreed or implicitly understood that former section 290.5 would continue to apply, and Taghilou would be relieved of the registration requirement if he obtained the certificate of rehabilitation, regardless of any changes in the law. (People v. Taghilou, supra, Slip Opn., pp. 27-28.) Therefore, the appellate court remanded the case to the trial court to conduct an evidentiary hearing to determine whether the parties had such an agreement or understanding. (Id. at p. 29.) Because the trial court on remand found (without objection by the People) that Taghilou no longer was required to register as a sex offender, it necessarily follows that the trial court concluded there was such an agreement or understanding. Thus, Taghilou was relieved of the duty to register as of August 25, 1997, i.e., the date the certificate of rehabilitation was issued.

B. Taghilou’s Claims Accrued in 1997

Having determined the time period during which Taghilou was required to register as a sex offender, we turn to the determination of when his claims accrued. County and Detective Anderson argued below, and argue on appeal, that all of Taghilou’s claims accrued in 1996, when Detective Anderson came to Taghilou’s home and threatened to arrest him if he did not register as a sex offender. Taghilou contends that his claims did not accrue until the trial court in Taghilou I issued its order vacating the registration requirement, because he could not successfully bring his causes of action until that time. Neither side is entirely correct.

County and Detective Anderson are correct that, to the extent Taghilou’s claims are based upon an alleged violation of his constitutional rights caused by the detective’s entry into Taghilou’s home and the purported threats he made or use of force, those claims accrued at the time the acts occurred in 1996. (See 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 493, p. 633 [“The cause of action ordinarily accrues when, under the substantive law, the wrongful act is done and the obligation or liability arises, i.e., when an action may be brought”]; Knox v. Davis (2001) 260 F.3d 1009, 1013 [“Under federal law, ‘a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action’”].) However, Taghilou’s claims based upon County and/or Detective Anderson allegedly “forcing” Taghilou to register as a sex offender when he no longer was required to do so could not have accrued in 1996 because no such wrongful conduct took place in that year, since Taghilou had not yet obtained his certificate of rehabilitation and therefore still was required to register under the plea agreement and the law.

Taghilou, on the other hand, argues that his claims did not accrue until 2015, when he obtained the order from the Taghilou I court stating that he no longer was required to register. In making this argument, he relies upon Acri v. International Assn. of Machinists (9th Cir. 1986) 781 F.2d 1393 (Acri), which held that “[u]nder federal law a cause of action accrues when the plaintiff is aware of the wrong and can successfully bring a cause of action.” (Id. at p. 1396.) Taghilou argues that he could not successfully bring his causes of action until he obtained the order in Taghilou I and therefore, under Acri, his causes of action did not accrue until that time. He is mistaken.

In Acri, members of a union sued their union for breach of the duty of fair representation and promissory estoppel. (Acri, supra, 781 F.2d at p. 1397.) During a strike by union members after the expiration of the union’s collective bargaining agreement with the employer, union representatives told the union members at a meeting that the employer had agreed in the proposed new agreement to remove a limit on severance pay that had been an issue in the strike. The union members ratified the new agreement during that meeting. A few months later, when the new agreement was distributed, the severance pay provision was unchanged from the previous agreement. Two years later, the employer informed the union members that it was going to close the plant, and that their severance pay would be limited as provided in the agreement. (Id. at p. 1395.) The Ninth Circuit held that the union members’ causes of action did not accrue when the members learned of the union’s wrongdoings (i.e., when the new agreement was distributed without any change to the severance provision) because the members had not suffered any injury at that time—in other words, they could not successfully bring a cause of action because an essential element was absent. Instead, the causes of action accrued when the union members were told that the plant was closing and their severance pay would be limited. (Id. at p. 1396.)

In the instant case, there was no such delay between Taghilou’s knowledge of the alleged wrongdoing and the alleged injury. By his own admission, Taghilou knew that he was not required to register as a sex offender in 1997, and the registration itself constituted the injury. Thus, Acri is of no help to Taghilou.

Neither does Heck v. Humphrey (1994) 512 U.S. 477 provide Taghilou assistance. In Heck, a prisoner brought a section 1983 claim for damages resulting from his allegedly unconstitutional conviction. The issue before the Supreme Court was whether such a claim was cognizable if the conviction had not already been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court’s issuance of a writ of habeas corpus. The Court held it was not, likening the prisoner’s claim to a claim for malicious prosecution. (Id. at pp. 486-487.) The Court observed that allowing a similar malicious prosecution claim to go forward “‘would permit a collateral attack on the conviction through the vehicle of a civil suit,’” raising concerns regarding finality of judgments and consistency. (Id. at p. 484.) It concluded that “the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution.” (Id. at p. 486.)

These concerns for finality and consistency are not present in the instant case. Taghilou’s claims do not challenge his criminal conviction. Instead, the claims are, indirectly, based upon the enforcement of his plea agreement. The fact that he—the person with the knowledge, power, and responsibility to enforce the agreement—delayed in seeking a court’s affirmation of the terms of the agreement did not toll the accrual of his causes of action. Instead, his claims based upon County and Detective Anderson allegedly “forcing” him to register as a sex offender accrued when he was relieved of the duty to register, i.e., August 25, 1997, the date the certificate of rehabilitation was issued.

C. Taghilou’s Section 1983 Claims Were Barred By the Statute of

Limitations

Having determined that Taghilou’s claims accrued in 1997, it is clear that the section 1983 claims are barred by the applicable statute of limitations. The complaint was filed in 2016. The statute of limitations for the section 1983 claims was one year at the time the claims accrued. (Knox v. Davis, supra, 260 F.3d at p. 1013 [state law determines the length of the limitations period for civil rights claims]; Javor v. Taggart (2002) 98 Cal.App.4th 795, 803 [one-year statute applies]; Maldonado v. Harris (9th Cir. 2004) 370 F.3d 945, 954-955 [noting statute of limitations increased from one-year to two-years in 2002].) Thus, the trial court properly found those claims were time-barred.

D. The State Law Claims Were Barred By the Tort Claims Act

“The California Tort Claims Act (Act) (Gov. Code, § 810 et seq.) governs actions against public entities and public employees. The timeliness of such actions is governed by the specific statute of limitations set forth in the Government Code, not the statute of limitations applicable to private defendants. [Citations.] [¶] Under the Act, no person may sue a public entity or public employee for ‘money or damages’ unless a timely written claim has been presented to and denied by the public entity. (Gov. Code, § 945.4; [citation].) A claim pertaining to a cause of action for personal injury must be filed within six months after the cause of action accrues. (Gov. Code, § 911.2; [citation].)” (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267.)

In the present case, Taghilou filed his claim with County in 2016, 19 years after his claims accrued in 1997. Thus, the trial court correctly found that all of his state law claims are barred. (Gov. Code, §§ 911.2, 945.4.)

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DISPOSITION

The judgment is affirmed. County and Detective Anderson shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

COLLINS, J.

CURREY, J.