Filed 5/22/02 Modified and certified for publication 6/12/02 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
In re EMILIANO M., a Person Coming
Under the Juvenile Court Law.
Plaintiff and Respondent,
(Super. Ct. No. J164204-008)
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, James R.
Odriozola, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Juvenile court
order reversed in part and affirmed in part.
Lynne G. McGinnis, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Janelle Boustany and
Vincent L. Rabago, Deputy Attorneys General, for Plaintiff and Respondent.
Emiliano M. appeals from the juvenile court order, continuing him on
probation after he violated a previous grant of probation by failing to pay restitution and
fines and by possessing air pistols, live ammunition and gang paraphernalia. As a
condition to the new grant of probation, the court ordered him to register as a gang
member of the Central Myrtle Street (CMS) gang pursuant to the newly enacted section
186.30 of the Penal Code.1 Emiliano contends this registration provision is
unconstitutional; even if valid, his condition to register must be stricken as the statute is
inapplicable to him. Because the statutory authority for such registration fails to include
probation violations not charged as “crimes,” and the one allegation constituting a crime
must be stricken, that term of the disposition order requiring registration is reversed and
dismissed; the remainder of the order is affirmed.
Nineteen-year-old Emiliano M. is presently facing attempted murder
charges in adult court for a drive-by shooting which occurred while he was on probation
to the juvenile court for a variety of offenses. In this instance, the juvenile court found
him in violation of juvenile probation, originally granted five years ago for carrying a
concealed loaded weapon in a car. Over the course of the last five years, there have been
five separate violations of probation sustained against Emiliano, the present one
comprising the sixth. This probation revocation involved his failure to pay fines and
restitution in his earlier cases, and the possession of air pistols and live ammunition, 2
which violated conditions in his prior probation. These items were found during a search
of his residence pursuant to a warrant issued in connection with the attempted murder
investigation. He admitted the allegation that he failed to pay the restitution and fines,
and submitted the issue of the contraband possession on the introduction of a police
report. Emiliano waived his rights to present any defense to the allegations and to have a
probation report prepared. The juvenile court read the police report and sustained the
petition alleging a probation violation. The court then granted probation (again) on the
condition Emiliano spend a year in custody. It also ordered him to register with law
All further section references are to the Penal Code, unless otherwise noted.
The parties include, as part of the contraband allegation, that Emiliano was found with gang
paraphernalia, specifically, papers with gang graffiti, hats, shirts, photographs and magazines. However, these
materials were never charged against him in the two petitions in question. The juvenile court considered the
evidence of the gang paraphernalia in its disposition, but not as a charge.
enforcement agencies as a gang member pursuant to section 186.30, a part of the
initiative known as the Gang Violence and Juvenile Crime Prevention Act of 1998
(Proposition 21), passed in March 2000.
Emiliano contends sections 186.30 and 186.32, authorizing gang
registration, are vague and overbroad. Emiliano argues that the registration requirements
fail to give fair and adequate notice of prohibited conduct, encourage arbitrary and
discriminatory enforcement and reach constitutionally protected conduct. We need not
resolve these issues as we agree with Emiliano in his alternative argument that he did not
qualify under section 186.30, subdivision (b)(3) that mandates such registration.
Section 186.30, subdivision (b) mandates gang registration of “any person
convicted in a criminal court or who has had a petition sustained in a juvenile court in
this state for any of the following offenses: [¶][¶] (3) Any crime that the court finds is
gang related at the time of sentencing or disposition.” (Emphasis added.) Emiliano’s
registration order was not the result of a petition sustained in a juvenile court for any
crime. Section 15 defines a crime as “an act committed or omitted in violation of a law
forbidding or commanding it, and to which is annexed, upon conviction, either of the
following punishments: [¶] 1. Death. [¶] 2. Imprisonment. [¶] 3. Fine. [¶] 4. Removal
from office; or, [¶] 5. Disqualification to hold and enjoy any office of honor, trust, or
profit in this State.” Emiliano was charged with violating certain conditions of his
previous grants of probation, but none of those violations were charged as crimes, only as
noncompliance with probationary conditions.3 Moreover, only one of those acts of
misconduct could comprise a crime. (See Discussion B, post.)
The Attorney General, as a preliminary matter, argues that Emiliano’s appeal raises only
hypothetical claims as any negative impact on him from the registration condition has not accrued. We note that in
other attacks on registration statutes, it was insufficient that the complaining parties had merely been ordered to
register by the court. It required that an individual was, at the least, charged with the failure to register before the
attack on the statute’s constitutionality was ripe. (See Lambert v. California (1957) 355 U.S. 225, 229; see also
People v. Franklin (1999) 20 Cal.4th 249, 253.) However, due to the expanded terms listed in section 186.32, if
registration is ordered under section 186.30, the negative impact of the registration requirement affects the
A. Crimes versus Probation Violations
Neither the allegations of nonpayment of fines nor the possession of air
pistols and ammunition were brought or charged as crimes.4 Although the record is quite
confused, all the parties proceeded on the assumption that all the charges were probation
violations, not separate crimes supporting a modification of the wardship. The initial
petition alleging the nonpayment of the fines was entitled, “Notice of Hearing[,]
Probation Violation.” The proof of service attached to that notice asserted that the
“minor comes within Section 602 of the Welfare and Institutions Code” but denotes the
hearing as a probation violation arraignment. Similarly, the petition charging him with
the contraband possession was also entitled, “Notice of Hearing [-] Probation Violation”
with the similar references on the proof of service. The probation department also
approached the matter as strictly a probation violation proceeding, referring to this case in
all of its reports as the seventh and ninth petition of probation violation under Welfare
and Institutions Code section 777. Finally, the juvenile court referred to this case in all
minute orders and on the record as strictly a probation violation proceeding; never was
the hearing referred to, or conducted as, a jurisdictional hearing under Welfare and
Institutions Code section 602.5
The distinction is no longer insignificant. Under the changes wrought by
the passage of Proposition 21, proceedings to revoke probation and modify previous
probationer immediately, and long before any criminal charges are lodged for failure to register. Indeed, upon
registering, the juvenile probationer must “appear at the law enforcement agency with a parent or guardian [¶] [at
which time the] law enforcement agency shall serve the juvenile and the parent with a [street terrorism act]
notification which shall include, where applicable, that the juvenile belongs to a gang whose members engage in or
have engaged in a pattern of criminal gang activity . . . . [¶] [Additionally, a] written statement signed by the
juvenile, giving any information that may be required by the law enforcement agency, shall be submitted by the law
enforcement agency. [¶][Finally, the] fingerprints and current photograph of the juvenile shall be submitted to the
law enforcement agency.” (§ 186.32, subd. (a)(1).) As Emiliano’s attack on the registration requirement focuses at
least in part on his fear of having to submit such a written statement as required by this type of registration, his
challenge is appropriate at this juncture.
We acknowledge that minors can commit crimes, although they cannot be convicted of such acts.
(See Welf. & Inst. Code, § 203; Shortridge v. Municipal Court (1984) 151 Cal.App.3d 611, 617-618.) Nor do we
mean to imply by anything that we say in this opinion that the juvenile court must conduct its proceedings
identically with the adult criminal court to comply with due process, federal or state.
Welfare and Institutions Code section 602 states that “Any person who is under the age of 18
years when he  violates any law of this state or of the United States or any ordinance of any city or county of this
orders under Welfare and Institutions Code section 777 are exclusively for charges not
amounting to crimes. (See In re Marcus A. (2001) 91 Cal.App.4 th 423, 427.) Prior to
those changes, Welfare and Institutions Code section 777 “outlined two categories of
misconduct [which could warrant revocation of probation and increased restrictions], that
which amounted to a crime and that which did not.” (Id. at p. 426.) By amending that
code section, certain procedural rights are no longer secured to wards undergoing a
revocation hearing under Welfare and Institutions Code section 777. For instance, the
juvenile court need only find the allegations in a supplemental petition under Welfare and
Institutions Code section 777 true by a preponderance of the evidence, not beyond a
reasonable doubt as was the case prior to the passage of Proposition 21 and is required for
proof of a crime. (See In re Winship (1970) 397 U.S. 358, 364-368 [a minor cannot be
made a ward of the court due to commission of a crime unless a charge is proved beyond
a reasonable doubt].) Likewise, hearsay evidence may be used in the hearings to prove
these probation violation allegations ( In re Marcus A., supra, 91 Cal.App.4 th at p. 427),
but not to prove criminal charges. Based on these dynamic changes, the court in Marcus
held that crimes charged as the basis to revoke juvenile probation must be brought under
Welfare and Institutions Code section 602, not section 777. (Ibid.)
In Marcus A., a petition filed under Welfare and Institutions Code section
777 alleged that Marcus, a ward of the court, had violated his probation by disobeying the
dress code of his placement facility and by possessing cigarettes. The juvenile court held
a hearing and found the dress code had never been clearly written. Thus, Marcus’s
disobedience was not a willful violation of his probation. However, the court also found
he possessed cigarettes and modified the wardship order by sending Marcus to the
California Youth Authority. (In re Marcus A., supra, 91 Cal.App.4 th at p. 426.)
On appeal, this finding and the subsequent order were reversed because a
minor in possession of cigarettes comprises a crime. (See § 308, subd. (b).) As this
misconduct occurred after the passage of Proposition 21, “it should not have been
state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of
the juvenile court, which may adjudge such person to be a ward of the court.”
pursued in proceedings initiated under the amended version of Welfare and Institutions
Code section 777.” (In re Marcus A., supra, 91 Cal.App.4 th at p. 427.)
Thus, assuming Emiliano’s hearing was conducted as a probation violation
hearing under Welfare and Institutions Code section 777, any charge comprising an
independent crime must be reversed. The Attorney General responds that the record does
not conclusively prove that the matter was decided under the abridged procedures of
Welfare and Institutions Code section 777, but might have been properly conducted as a
Welfare and Institutions Code section 602 trial. Additionally, he argues that,
notwithstanding the changes to Welfare and Institutions Code section 777, a probation
revocation may still be based on charges of either actual crimes or noncriminal
misconduct. He attempts to distinguish the Marcus A. opinion by noting Marcus was
appealing his commitment to CYA following a single finding of criminal conduct
brought under the Welfare and Institutions Code section 777 procedure. Moreover, the
juvenile court error was conceded in Marcus’s case. In contrast, Emiliano was found to
have committed both criminal and noncriminal misconduct, and he was not sent to CYA.
We are not persuaded that these factual differences undermine the basic
rule of law laid down in Marcus A.: A probation violation which constitutes a separate
crime must be brought under the procedures of a Welfare and Institutions Code section
602 jurisdictional hearing. And, as persuasively argued by the Attorney General, a crime
is a crime, irrespective of the nomenclature of probation violation attached to it by the
B. Proof of Misconduct
Marcus admitted he had failed to pay the restitution and fines. Such acts
are noncriminal offenses and support the probation revocation, but not the mandatory
registration condition. As to the contraband possession, a police report was admitted—
with Emiliano’s agreement—to prove the allegations. In it, the police officer wrote he
found a “Crossman model 38T air pistol” in the bedroom not belonging to Emiliano. In
the garage, three “boxes of 7.62 ammo, [one] box of .38 [caliber] round-nose bullets 
with 14 rounds missing” and a “Crossman .45 [caliber] air pistol 1008 repeat air” [sic]
The Attorney General emphasizes that Emiliano was in possession of two
handguns and live ammunition. It is a crime for a minor6 to possess live ammunition
(§ 12101, subd. (b)(1)), but only if his or her parents do not give the minor permission to
possess it or are not present. (§ 12101, subd. (b)(2)(A)-(B).) Based on the police report
of the search, Emiliano’s mother was present during the search that revealed the
ammunition. However, Emiliano was no longer a minor at the time of the search, having
already celebrated his 19th birthday.
An adult’s possession of ammunition is not a crime. However, the
Attorney General notes Emiliano was previously ordered not to possess “weapons and
ammunition[.]” Under section 12316, subdivision (b)(1)-(3), it is a “wobbler”7 offense to
possess ammunition if, “as an express condition of probation, [the person was] prohibited
or restricted from owning, possessing, [or] controlling,” any firearm. (§ 12021, subd.
(d).) As Emiliano was expressly ordered not to possess any weapons as a condition of his
earlier probation, his possession of the ammunition was at least arguably a violation of
section 12316, subdivision (b), although not charged as that in the petition. As this
allegation comprised an independent crime, it was required to be charged and proved
under Welfare and Institutions Code section 602, not Welfare and Institutions Code
section 777. (See Discussion A, infra.) Thus, the finding on the ammunition allegation
must be reversed.
As to the second part of the contraband allegation, the “weapons” found in
Emiliano’s possession were not firearms as defined by section 12001. The allegation
charged Emiliano with possessing “a weapon (2 REPLICA HANDGUNS/AIR
We are aware that Emiliano, although a ward of the court and referred to both parties as a minor,
was actually an adult at the time of the search, assuming the probation department and prosecution were correct in
reciting his birthdate as being in 1981.
See People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 355 which defines a wobbler
offense as one of those “special class of felony-misdemeanor offenses” in which the range of punishment for the
offense is stated but not its categorization as either felony or misdemeanor.
PISTOLS[.]” The police report submitted to prove that allegation refers to both items as
air pistols, not handguns. Section 12001 defines a firearm as “any device, designed to be
used as a weapon, from which is expelled through a barrel a projectile by the force of any
explosion or other form of combustion.” (§ 12001, subd. (b).) The same statute later
defines a “BB device”—which is not prohibited—as “any instrument that expels a
metallic projectile, such as a BB or a pellet, through the force of air pressure, [carbon
dioxide] pressure, or spring action, or any spot marker gun.” (§ 12001, subd. (g).)
Nothing in the submitted police report characterizes the items as firearms. To the
contrary, each reference is to an air pistol which would fall under the general description
of a BB device, not a firearm as prohibited by section 12021. Thus, Emiliano’s
possession of the air pistols violated his terms of probation but did not comprise a
On the other hand, the Attorney General contends Emiliano committed the
crime of contempt of court by his willful violation of a court order. (Cf. Welf. & Inst.
Code, § 213.) His contempt, however, can only be alleged under Welfare and Institutions
Code section 213 and not under the general contempt statute found in section 166. (See
In re Ricardo A. (1995) 32 Cal.App.4 th 1190, 1195 [Legislature intended the specific
statute to preempt general contempt statute in juvenile court proceedings for status
probation violations].) This distinction is important: Welfare and Institutions Code
section 213 provides no specialized punishment for its contempt and can be assessed as
either civil or criminal, although seemingly criminal in nature in this situation. ( Id. at p.
1195 & pp. 1199-1200.)
As detailed in In re Ricardo A., supra, 32 Cal.App.4 th 1190, contempt
charges cannot be brought under the general statute when the basis of the contempt is
disobedience of a juvenile court’s probation order, “and not separate crimes.” ( Id. at p.
1199.) By the very language of Ricardo A., violations of probation conditions are status
offenses, not crimes.
C. Mandatory Registration
Section 186.30, subdivision (b)(3) mandates registration for a juvenile
against whom a petition has been sustained for “[a]ny crime that the court finds is gang
related at the time of . . . disposition.” Emiliano notes that no guidance is given to define
a crime that is gang related. Thus, it not only fails to give adequate notice of what
conduct is criminal, but also places undue discretion on individual judges to define or
apply it. Such laws, he maintains, violate the rule requiring statutes to describe conduct
with sufficient particularity for a reasonable person to comprehend its criminality in
advance and to discourage arbitrary enforcement. (See Kolender v. Lawson (1983) 461
U.S. 352, 357.) 8
The test for vagueness is whether the law fails to provide notice such that a
person of ordinary intelligence can determine what conduct is prohibited (see People v.
Franklin, supra, 20 Cal.4 th at pp. 253-254), or whether it permits arbitrary and
discriminatory application by law enforcement or officials. (See Kolender v. Lawson,
supra, 461 U.S. at p. 357.) “Only a reasonable degree of certainty is required, however.”
(Tobe v. City of Santa Ana (1995) 9 Cal.4 th 1069, 1107 [emphasis added].) On the other
hand, noncompliance constitutes a criminal offense, albeit a misdemeanor. (§ 186.33,
subd. (a).) “That being so, the statute must be construed as favorably to the defendant as
its language and the circumstances of its application reasonably may permit.” (People v.
Franklin, supra, 20 Cal.4 th at p. 253.)
In the case at bar, the law has been unreasonably misinterpreted when it
was applied to Emiliano. As the single act of misconduct which could comprise a crime
must be stricken, Emiliano was never found to have committed a crime at all, much less
one that was gang related, however that was defined. He was only found to have violated
conditions of his previous orders of probation, which originated in 1996 for joyriding and
carrying a concealed weapon.
The issue of the constitutionality of section 186.30 is presently pending before the California
Supreme Court in the case of In re Walter S. (2001) 89 Cal.App.4th 946 (rev. gr. Sept. 19, 2001; S099120).
A probation violation need not comprise a crime. “The court may revoke
the probation, ‘if the interests of justice so require and the court, in its judgment, has
reason to believe from the report of the probation officer or otherwise that the person has
violated any of the conditions of his or her probation, . . . .’” (3 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Punishment § 577, pp. 768-769.) And a proceeding under
Welfare and Institutions Code section 777 cannot be based on charges of a crime. (See
In re Marcus A., supra, 91 Cal.App.4 th at p. 427.) However, for gang registration to be
ordered under section 186.30, a crime must be found to have been committed. It was not
D. Relation Back Theory
The Attorney General contends that, even if the acts constituting the present
probation violation are not crimes, the original crime for which Emiliano was placed on
probation in 1995 was a crime, and the registration condition was technically ordered for
rehabilitation on that crime. Therefore, the registration condition related back to the
original wardship six years ago, which was based on the finding that he committed the
crimes of joyriding and carrying a concealed firearm. That original finding was based on
evidence that Emiliano was a member of the criminal street gang, named Thugs Gone
Krazy. Five years (and six probation violation petitions) later, Emiliano was still an
active gang member and a failure on probation. Relying on language found in Antonio G.
v. Superior Court (1993) 14 Cal.App.4 th 422, the Attorney General invites us to support
the juvenile court order with the original findings from 1995.
Antonio G. addressed a minor’s right to challenge a judge from hearing a
new petition under Welfare and Institutions Code section 777 subsequent to that judge
having taken action in the case. Not only did it not address the issue before us, but the
case involved the proceedings under that statute prior to the passage of Proposition 21.
Due to these important distinctions, we are most reticent to broaden the application of the
statute, particularly when the statute did not exist when Emiliano committed that earlier
offense or when he was originally placed on probation. (Cf. Collins v. Youngblood
(1990) 497 U.S. 37, 50.)
E. Discretionary Registration
The Attorney General argues in the alternative that section 186.30 mandates
the imposition of the registration condition upon the conviction of a crime, but permits
the imposition of such a condition whenever the juvenile court determines its need and
appropriateness. (See § 186.32, subd. (e); see also Welf. & Inst. Code, § 730, subd. (b)
[juvenile court has authority to order any condition deemed “fitting and proper to the end
that justice may be done . . . .”] .) 9 However, this juvenile court stated, in ordering the
registration condition, that when Emiliano was “released from custody . . . if it is still the
law, it may not be by then because I know that [it is] up, he’s to register within  days
with the police department . . . as someone who is on gang terms and conditions of
probation. . . .” (Emphasis added.) The defense then objected to the registration
condition, and the court replied, “That issue is reserved. I think it’s up. . . . So obviously
we should at some time get some guidance as to the constitutionality as to that provision.
But right now it is the state of the law. . . . If an appellate court changes by opinion that
requirement then obviously by operation of law that condition of probation would drop
off. . . .” (Emphasis added.)
By the court’s own language, it was not imposing the registration provision
as a discretionary condition of probation which it deemed helpful to the rehabilitation of
this juvenile probationer 10 or necessary for the safety of the community. (See In re
Lawanda L. (1986) 178 Cal.App.3d 423, 433 [rehabilitation of a minor and protection of
the public are the purposes of the juvenile court system].) On the contrary, by stating it
Section 186.32, subdivision (e) states that “Nothing in this section or Section 186.30 or 186.31
shall preclude a court in its discretion from imposing the registration requirements as set forth in those sections in a
No one could possibly look at Emiliano’s record and his present status and contend the court was
hopeful of his rehabilitation. He had failed to comply with any of the terms of his probation, and he was facing
charges in adult court in a serious attempted murder case. He remained in custody for both this probation violation
and the pending charges. His original grant of probation indicated he was involved with the Thugs Gone Krazy
gang, and through the years of his probation, he had progressed to membership in the CMS gang. Finally, his
probation with the juvenile court was ordered to be terminated in April 2002 on Emiliano’s 21st birthday as an
unsuccessful term of probation.
was a requirement, the court deemed the registration condition a statutory mandate.
Without that mandate, the condition would cease to exist, according to the juvenile court.
The finding of the juvenile court that Emiliano possessed ammunition must
be reversed and the subsequent condition of probation requiring registration as a gang
member under section 186.30 is stricken. In all other ways, the juvenile court order is
SILLS, P. J.
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
In re Emiliano M., a Person Coming Under
the Juvenile Court Law.
Plaintiff and Respondent,
(Super. Ct. No. J164204-008)
Defendant and Appellant.
Order Granting Request for
Publication, Directing Publication and
Modifying Opinion; No Change in
Pursuant to California Rules of Court, rule 978, appellant’s request for
publication, in which the Appellate Defenders Inc. has joined, of this opinion filed on
May 22, 2002, is GRANTED.
The opinion is ordered published in the Official Reports. In addition, the
opinion is hereby ordered modified as follows:
On the first page, the very first line of the first heading should be replaced
with “CERTIFIED FOR PUBLICATION,” in bold and capitalized letters. The next three
lines contained within boxed lines should be deleted.
On the second page of the opinion, in the introductory paragraph, the last
sentence should be deleted and replaced with the following: “One allegation constituting
a crime must be stricken as the prosecution failed to properly charge it under the
applicable procedural and jurisdictional statute. Because the statutory authority for the
gang registration fails to include probation violations not charged as crimes, the
registration condition is reversed. The remainder of the order is affirmed.”
In the second paragraph, the second sentence should be modified by
replacing the first three words with the words, “In the case before us[.]” In the third
sentence of that paragraph, the word “separate” should be replaced with the word,
On the second page, in footnote two, the first sentence should be modified
by replacing the word, “include,” with the word, “assume,” and the word, “specifically,”
with the words, “such as[.]”
On the third page, in the fifth line of the page, the word, “any,” should be
replaced with the article, “a[.]” The sentence that commences in line seven and continues
to line eight, should be replaced with the following sentence: “The court then readmitted
Emiliano to probation on the condition he serve a year in custody.”
On the third page, the first sentence of the first paragraph of the Discussion
should be replaced with “Emiliano contends the statutory authority for gang registration,
sections 186.30 and 186.32, is vague and overbroad.” In the last sentence of that first
paragraph, the phrase, “for a registration condition,” should be added after the word,
“qualify” and before the word, “under[.]” Footnote three, now presently inserted on the
fourth page at the end of the first full sentence, should be deleted from page four and
inserted at the end of the first paragraph of the Discussion on page three.
On page six, a parenthetical that reads, “(CYA)[,]”should be added at the
end of the last full sentence.
On page six, in the third paragraph, a clause should be added to the ending
of the first sentence, that reads as follows: “as it was not prosecuted as a crime with the
attendant procedural protections afforded hearings under Welfare and Institutions Code
In the first sentence of the first full paragraph on page seven, the word,
“had,” should be deleted. In the second sentence of that paragraph, the comma should be
On page eight, in the parenthetical in the fifth line of the page, the word,
“infra” should be replaced with the word, “ante[.]
In the first line of page nine, the word, “and,” should be replaced with the
In the first line of the first full paragraph on page nine, the word, “detailed,”
should be replaced with the word, “explained[.]”
In the last partial paragraph on page nine, the paragraph should end with the
parenthetical citation of Tobe v. City of Santa Ana (1995) 9 Cal.4 th 1069, 1107 [emphasis
added.] The next sentence should commence a new paragraph.
In the first line of the first full paragraph on page 10, the words, “has been,”
should be replaced with the word, “was[.]”
On page 12, in the last paragraph of the opinion, a comma should be
inserted after the word, “reversed[.]” In footnote 10 on that page, the word,
“realistically,” should be inserted in the first sentence immediately before the word,
This modification does not effect a change in the judgment.
SILLS, P. J.