Jackson v. Department of Justice

Discussion

Petitioner presents two main arguments, which he advances in the alternative. His primary contention is that the ALJ and the trial court misinterpreted the AWCA in two respects. According to petitioner, persons granted permits under section 12286, such as himself, are exempt from the registration requirements of section 12285 and therefore his acquisition, possession and sale of unregistered weapons did not violate the Act. Petitioner also maintains that the AWCA does not bar the consignment sale of assault weapons registered to other persons, because he acquired these weapons in transactions that “amounted to sales in which title to the assault weapons indeed passed to [petitioner] when his customers transferred the weapons to him.” Since, on this theory, petitioner legally owned the weapons in question, he claims he did not violate provisions of section 12285 implying that licensed gun dealers may not acquire and hold for sale registered assault weapons belonging to others.

Petitioner’s alternative argument is that if it is determined that the trial court properly construed the AWCA then the AWCA is unconstitutionally vague and therefore void, because it provides insufficient notice as to what it prohibits.

Before we address petitioner’s arguments, it is useful to generally describe the AWCA, focussing upon those aspects of the regulatory scheme at issue here.

The AWCA is “a remedial law aimed at protecting the public against a highly serious danger to life and safety.” (In re Jorge M. (2000) 23 Cal.4th 866 , 880 [ 98 Cal.Rptr.2d 466 , 4 P.3d 297 ].) The origins and legislative history of the Act were reviewed in detail by the Supreme Court in Kasler v. Lockyer (2000) 23 Cal.4th 472 , 482-487 [ 97 Cal.Rptr.2d 334 , 2 P.3d 581 ], and therefore need not be reiterated. The purpose of the measure is reflected in the legislative finding and declaration “that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to Mil and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily

assault weapon prior to the date it was declared or specified as an assault weapon pursuant to sections 12276.1 and 12276.5 shall register the firearm within one year of the effective date of section 12276.1. Subdivision (b) states that after January 1, 1990, a registered assault weapon may not be sold or transferred to anyone within the state other than a licensed gun dealer, though such a weapon may also be relinquished to a law enforcement agency, as provided in section 12288. Anyone who obtains title to a registered assault weapon, as by bequest, or who lawfully possessed a firearm subsequently declared to be an assault weapon under section 12276.5, or subsequently defined as such a weapon under section 12276.1, shall within 90 days either render the weapon permanently inoperable, sell it to a licensed gun dealer, obtain a permit from the Department of Justice, or remove the weapon from the state. One who lawfully possessed a firearm subsequently declared to be an assault weapon under section 12276.5 may alternatively register the firearm within 90 days of the declaration. A person who moves into the state and is in lawful possession of an assault weapon must either first obtain a permit from the Department of Justice or deliver the weapon to a licensed gun dealer. If the person thereafter obtains a permit the weapon may be returned to him or her by the licensed gun dealer; otherwise the gun dealer must hold or dispose of the weapon in the manner prescribed by other provisions of the AWCA.

Subdivision (c) of section 12285 provides that one who has registered an assault weapon may possess it only under specified conditions unless a permit allowing additional uses is first obtained under section 12286. The specified conditions are that the weapon be used only at the registrant’s residence, place of business, or other property owned by the registrant, or on property owned by another with that person’s express permission; or while on the premises of certain target ranges or shooting clubs; or “while attending any exhibition, display, or educational project . . . sponsored by, conducted under the auspices of, or approved by a law enforcement agency or a nationally or state recognized entity that fosters proficiency in, or promotes education about, firearms”; or while on publicly owned land if the possession and use of assault weapons is specifically permitted by the managing agency; or while transporting the assault weapon between any of the aforementioned places. (§ 12285, subd. (c)(l)-(7).) Subdivision (c) is relevant to this case because it does not authorize the sale of assault weapons. Because he wished to engage in such sales, petitioner was required to, and did, obtain an assault weapon permit under section 12286 specifically authorizing him to engage in retail sales.

Other significant provisions of section 12285 are subdivision (d), which states that an assault weapon may not be registered or possessed by a minor,

a person prohibited by other provisions of the Penal Code from possessing weapons, or by certain persons receiving treatment for or suffering from mental disorders. Subdivision (f) establishes a 90-day forgiveness period to allow certain persons to register assault weapons they lawfully possessed prior to June 1, 1989. Subdivision (h) provides that persons who register within that forgiveness period, and certain others who register weapons they earlier possessed after January 1, 1991, shall not be charged with a violation of the AWCA “if law enforcement becomes aware of that violation only as a result of the registration of the assault weapon.”

Section 12286, which relates to assault weapon permits, consists in material part of the following sentence: “Any person who lawfully acquired an assault weapon before June 1, 1989, and wishes to use it in a manner different than specified in subdivision (c) of Section 12285, any person who lawfully acquired an assault weapon between June 1, 1989, and January 1, 1990, and wishes to keep it after January 1, 1990, . . . shall first obtain a permit from the Department of Justice . . . .”

Because he wished to engage in retail sales of assault weapons to law enforcement agencies and out-of-state dealers, and provide such weapons for use in motion pictures or television productions, and these activities are not authorized under subdivision (c) of section 12285, petitioner applied for and received a permit allowing such additional uses. As earlier noted, his permit stipulated that it “issued for use in commercial motion picture and television productions [and] for the purpose of retail sales.”

1. Standard of Review.

The pertinent facts are undisputed. The statutory and constitutional questions we must resolve, identical to those raised below, present pure questions of law and are therefore subject to this court’s independent determination. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692 , 699 [ 170 Cal.Rptr. 817 , 621 P.2d 856 ]; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539 , 544 [ 35 Cal.Rptr.2d 574 ].)

2. Petitioner’s Assault Weapon Permit Does Not Exempt Him from the Registration Requirement.

In finding that petitioner’s sales of unregistered assault weapons violated the AWCA, the trial court reasoned that “§ 12290(a) allows a licensed gun dealer ‘who lawfully possesses an assault weapon pursuant to Section 12285’ to ‘transport the weapon between dealers or out of the state,

12285 or in any other provision of the AWCA does the Legislature explicitly require persons who move into California after the effective date of the Act and who then possess or later acquire assault weapon permits to register the assault weapon they lawfully possessed and brought into the state. Similarly, persons who obtain assault weapons through bequest or intestate succession are also not specifically required to register the firearm as a condition of lawful possession, and are authorized to sell such a firearm to a licensed gun dealer (if they do not render the weapon permanently inoperable or obtain a permit for its use). (§ 12285, subd. (b)(1).) Finally, the AWCA authorizes holders of permits to purchase new and therefore presumably unregistered assault weapons from certain manufacturers. (§ 12287, subd. (a)(2).)

Petitioner claims the foregoing exceptions to the registration requirement show that section 12285 is actually peripheral to the regulatory scheme. According to petitioner, section 12285 merely defines “an initial process of ‘grandfathering’ assault weapons” legally possessed by qualified persons prior to June 1, 1989, the date specified in subdivision (a) of section 12285, which petitioner refers to as “the Grandfather Date.” Such persons were required by subdivision (a) to register their weapons no later than January 1, 1991. After January 1, 1990, such a registrant could dispose of the weapon only by selling or transferring it to a licensed gun dealer or by relinquishing it to a law enforcement agency. (§ 12285, subd. (b)(1).) Petitioner maintains that section 12285 does little more than provide for “a time-limited initial census of grandfathered assault weapons and impos[es] restrictions on those brought forward for registration.” Asserting that the pool of grandfathered assault weapons will shrink over time as registrants die or dispose of their assault weapons, petitioner argues that the assault weapons to which the registration requirement applies are increasingly insignificant. Petitioner claims that, at the same time, there is a “growing multitude of unregistered assault weapons” in California, which consists of (1) registrable weapons that were not brought forward for registration by their owners during the statutorily prescribed period, (2) weapons not earlier registered because they did not then qualify for registration, and (3) assault weapons manufactured or brought into California only after expiration of the registration period prescribed by section 12285. According to petitioner, the AWCA relies on Department of Justice permittees and licensed gun dealers (who, as in his case, may also be permittees) to “track and control” this pool of assault weapons. As petitioner sees it, the holders of assault weapon permits and licensed gun dealers are “the cornerstones of the AWCA for regulating assault weapons .... As the pool of registrants dwindles over time, the legitimate civilian possession and transfer of assault weapons will increasingly become the nearly exclusive domain of [assault weapon] Permittees.” Petitioner buttresses this argument by pointing out, as we already have, that

section 12286 places no restriction on the assault weapons that the holder of a permit may acquire after January 1, 1990, and claiming that such permit-tees “thereby have the power to acquire the widening multitude of assault weapons which never were registered or never could have been.” Moreover, he adds, it is appropriate to give the holders of permits and licensed gun dealers the regulatory responsibility he posits, because such persons are rigorously investigated, annually re-screened, and required to maintain detailed records of the assault weapons with which they deal, and to disclose such records to law enforcement upon request. (See Cal. Code Regs., tit. 11, §§ 972-975.5.) Petitioner also emphasizes, finally, that the assault weapon permit issued him by respondent also contains no explicit prohibition on the acquisition, possession or transfer of unregistered assault weapons. In short, because the regulatory scheme does not need to restrict holders of assault weapon permits and licensed gun dealers to registered weapons, and the AWCA does not explicitly impose any such restriction on these permittees and licensees, petitioner concludes that his possession and sales of such unregistered assault weapons do not violate the Act.

Needless to say, respondent reads the AWCA very differently. “Although the AWCA is commonly considered as a type of ban on firearms,” respondent states, “in actuality, its core provision, or method of controlling evils associated with [assault weapons] is the registration process. All weapons in the state held by private citizens which are not registered before the specified deadlines are deemed to be unlawful contraband.” In support of this argument, respondent points to subdivision (b) of section 12280 which provides that “any person who, within this state, possesses any assault weapon, except as provided in this chapter [i.e., sections 12275-12290], is guilty of a public offense . . . and shall be punished by imprisonment in the state prison, or in a county jail. . . .” Respondent also relies on subdivision (b)(1) of section 12285 which, as noted, provides that after January 1, 1990, no assault weapon “possessed pursuant to this section” may be sold or transferred to anyone in the state other than a licensed gun dealer. Respondent claims that the clear implication of this language is that unregistered assault weapons may not be sold or transferred—even to a licensed gun dealer.

While cognizant that several exceptions to the registration requirement could be inferred from the language of section 12285, we think that on balance respondent advances the stronger argument. We do not conceive the registration and permit procedures as alternative ways in which to place restrictions on the use of assault weapons; nor do we perceive any conflict in these procedures. As respondent points out, a permit attaches to a person and may be altered by changing the permitted conduct. Registration, on the other

Theatres, Inc. v. Palermo (1956) 47 Cal.2d 469 , 476 [ 304 P.2d 7 ].) Section 12285 can be seen as articulating a general rule requiring registration.

It is true, as we have said, that subdivision (b)(2) of section 12285 arguably exempts certain persons from the registration requirement, but petitioner is not within any such exemption. While the prohibitions of section 12280 do not apply to holders of assault weapon permits and licensed gun dealers who act in accordance with sections 12286 and 12290 (§ 12280, subd. (r)(l), (2)), sections 12286 and 12290 do not relieve such permittees and licensees of the registration requirements of section 12285. If such persons could acquire and sell unregistered assault weapons, those who possess such firearms would have less reason to register them, which would undermine one of the central purposes of the AWCA.

We cannot agree with petitioner that, as interpreted by the Attorney General and the court below, section 12285 would create the dangerous regulatory lacunae that assertedly can be filled only if the holders of assault weapon permits are given the responsibility to “track and control” the disposition of unregistered assault weapons. For one thing, petitioner has offered no evidence to support his bare assertion that there is a “growing multitude of unregistered assault weapons” in California. Furthermore, it is difficult to imagine that the Legislature intended enforcement of the AWCA to be controlled by holders of assault weapon permits or licensed gun dealers, whose economic interests might very well conflict with the Legislature’s restrictive interests. It is true, as we have repeatedly acknowledged, that there are some exceptions to the registration requirement, but we do not believe they make it impossible for a licensed gun dealer to determine whether a person who desires to sell him or her an unregistered weapon is within one of those exceptions—because, for example, he lives in or just moved from another state or obtained the unregistered weapon through bequest or intestate succession—and we believe the Act imposes on dealers a duty to make such an inquiry.

The exemption petitioner imputes to the AWCA—which would facilitate the traffic in unregistered assault weapons difficult to track and control—offends the salutary principle of statutory construction that “ ‘the objective sought to be achieved by a statute as well as the evil to be prevented is of prime consideration . . .’” (People ex rel. S. F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal.2d 533 , 543 [ 72 Cal.Rptr. 790 , 446 P.2d 790 ]), and a statute must therefore be read “in light of the evils which prompted its enactment and the method of control which the Legislature chose. [Citation.]” (People v. Vega (1995) 33 Cal.App.4th 706 , 709-710 [ 39 Cal.Rptr.2d 479 ].) The four unregistered assault weapons petitioner admits

having to bear the weight of the length of time to sell the weapons.” Petitioner stated that when a weapon was transferred to him for consignment “[w]e logged it into our books as belonging to us and they awaited payment.” Most transferors did not want the weapon returned, petitioner testified, but he claimed that “if they did want them back, what they would have to do under federal law and state law is fill out the dealer record of sale and wait the ten days and fill out the appropriate paperwork on background investigation and so on.” Petitioner states that he “deemed the weapons to belong to his business and had every intention to sell them, as his own, to out-of-state dealers.” Thus, he argues, “[t]he fact that [petitioner] and his customers informally referred to their transactions as ‘consignments’ does not detract from the actual character of these transactions as sales.”

This manifestly untenable argument, which would allow the proper characterization of a transaction as a sale or consignment to turn on the post hoc declaration of the previously unrevealed intent of one party, requires little discussion. The sole authority petitioner musters for his position is the following statement from Witkin: “A contract establishing an ‘agency’ with the exclusive privilege of selling a particular product may, despite such designation, amount to a sale instead of a mere agency or consignment. If the person contracts to buy goods from another to sell as his own, there is a sale, and he is liable to the other as a debtor for the price; whereas if he takes the goods as the property of the principal, subject to the latter’s control and right of recall, and the latter has the right to receive the proceeds when sold less the agent’s commission, there is an agency.” (3 Witkin, Summary of Cal. Law (9th ed. 1987) Sales, § 2, p. 14, italics omitted.) This statement of the law supports respondent, not petitioner, as petitioner did not contract with those from whom he received assault weapons to sell them as his own, and he admitted he took the firearms subject to the transferor’s right of recall. A consignment for sale is a form of bailment, and as Witkin points out, “[a] bailment is usually clearly distinguishable from a sale. [Citations.]” (Id. at § 1, p. 13.)

Witkin acknowledges that there is a superficial resemblance between a bailment with an option to buy and a sale with an option to return. The principal test, he states, “is whether there was a binding promise, on the part of the person to whom the possession was given, to pay for the goods. If so, it is a sale, title passing at once, subject to the right of return. If not, it is a mere bailment, and no title passes until the option to buy is exercised.” (3 Witkin, Summary of Cal. Law, supra, Sales, § 1, at p. 14.) A sale with an option to return cannot be concocted in this case, because petitioner never made a binding promise to pay for the assault weapons he received from those who transferred them to him in transactions mutually referred to as

consignments. The only duty petitioner can be deemed to have accepted is to try to find buyers for the consigned weapons, in which case he retained 10 percent of the purchase price and returned the remainder to the consignor. While petitioner may have treated these weapons as if he held title to them while he sought buyers, he clearly did not; title remained in the hands of the consignors, as evidenced by the receipts they received from petitioner. Moreover, the impediments to returning a consigned assault weapon to its owner that petitioner conjures to support his theory of ownership are unsupported by any citation to federal or state law and are, so far as we can tell, imaginary. The return of a consigned assault weapon to its lawful owner seems to us not very different from the return by a borrower of such a firearm to the lawful owner who lent it, which is not subject to the prohibitions of section 12280. (§ 12280, subd. (n)(2).) Nor, so far as we are aware, does any federal gun law significantly encumber the return of an assault weapon to one who owns and may lawfully possess the firearm.

In a footnote, petitioner argues that even if we agree with the trial court that he accepted assault weapons on a true consignment basis, he cannot be found to have violated the AWCA because section 12286 does not restrict how the holder of an assault weapon permit “wisbfing] to acquire an assault weapon after January 1, 1990” may do so. We reject this argument because, as we have already said, the failure of one section of the Act to reiterate a restriction imposed in another section does not relieve a person subject to both sections of the restriction. Petitioner also contends in this footnote that section 12285, subdivision (b)(1), contemplates that licensed gun dealers may take possession of registered assault weapons on a consignment basis, because it states that such firearms “may be sold or transferred” to such a person by one who lawfully possesses them. Consignment is therefore authorized, petitioner concludes, because even if a consignment is not a sale it is indisputably a transfer. This argument misconstrues the statute because it ignores the rest of the sentence in which quoted phrase appears. The sentence states in its entirety as follows: “Except as provided in paragraph (2) [which relates to certain persons moving into the state], no assault weapon . . . may be sold or transferred on or after January 1, 1990, to anyone in this state other than to a licensed gun dealer, as defined in subdivision (c) of Section 12290 [defining the term ‘licensed gun dealer’], or as provided in Section 12288 [which provides that any individual ‘may relinquish an assault weapon to a police or sheriff’s department’].” As used in this sentence, the verb “transfer” refers only to the relinquishment of assault weapons to law enforcement agencies. Since consignments are neither sales nor relinquishments, they are unauthorized by section 12285.

Nor is the consignment of assault weapons permitted by section 12290, which specifies the manner in which licensed gun dealers may transport,

before that interpretation may be enforced, or that respondent’s failure to explain its interpretation of the Act constitutes a violation of his due process rights.”

In making this determination the court relied on Transamerica Occidental Life Ins. Co. v. State Board of Equalization (1991) 232 Cal.App.3d 1048 [ 284 Cal.Rptr. 9 ] (Transamerica), a tax refund action brought by an insurance company concerning which of two tax rates applied to certain premiums under the Revenue and Taxation Code. The insurer contended, inter alia, that the Department of Insurance and the Board of Equalization had earlier indicated that the lower rate applied, and that this advice, which it assertedly relied upon, supported its view of the statute, which was consistent with that earlier view. The Court of Appeal rejected this argument, stating that “[ajlthough equitable estoppel may apply to government actions where justice and right so require, ‘estoppel will not be applied against the government if the result would be to nullify a strong rule of policy adopted for the benefit of the public [citations] or to contravene directly any statutory or constitutional limitations. [Citation.]’ ” (Id. at p. 1054, quoting People ex rel. Franchise Tax Bd. v. Superior Court (1985) 164 Cal.App.3d 526 , 551 [ 210 Cal.Rptr. 695 ].) “Specifically,” the court reiterated, “ ‘the state is not es-topped from collecting a tax which was due and owing, even though the state’s representatives may have previously adopted an incorrect interpretation of the law and advised the public that no taxes would become due on a particular transaction or transactions.’ ” (Transamerica, at p. 1055, quoting Fischbach & Moore, Inc. v. State Bd. of Equalization (1981) 117 Cal.App.3d 627 , 632 [ 172 Cal.Rptr. 923 ].) The Transamerica court found that the plaintiff did not rely to its detriment on the government’s conduct, noting, moreover, that the Board of Equalization (unlike the Department of Insurance) never told the plaintiff that the lower rate applied, but merely failed to object when it applied that rate. (Ibid.)

Although the present case does not involve a tax, it does involve enforcement of a strong rule of public policy adopted for the benefit of the public. We believe Transamerica and many of the cases it relied upon are authority for the proposition that respondent cannot be prevented from refusing to renew petitioner’s assault weapon permit because respondent previously countenanced the conduct it now claims to be unlawful. It is also worth noting that in Transamerica the plaintiff had been affirmatively advised by the Department of Insurance that the lower rate applied; in this case respondent never told petitioner he could sell unregistered assault weapons or could sell weapons registered to others on a consignment basis, but merely failed to object to such conduct in the past. Petitioner’s argument is therefore not as strong as that rejected in Transamerica.

The ruling below that respondent did not deprive petitioner of fair and reasonable notice of its interpretation of the AWCA, although correct, does not address petitioner’s more fundamental claim that the Act itself is so vague as to what it either forbids or requires that it is constitutionally void. Petitioner predicates this argument on two cases, Lanzetta v. New Jersey (1938) 306 U.S. 451 [ 59 S.Ct. 618 , 83 L.Ed. 888 ] and People v. Mirmirani (1981) 30 Cal.3d 375 [ 178 Cal.Rptr. 792 , 636 P.2d 1130 ].

In Lanzetta the Supreme Court found that a New Jersey statute was so vague and uncertain as to be repugnant to the due process clause of the Fourteenth Amendment. The statute provided that “ ‘[a]ny person not engaged in any lawful occupation, known to be a member of any gang consisting of two or more persons, who has been convicted at least three times of being a disorderly person, or who has been convicted of any crime, in this or in any other State, is declared to be a gangster . . and may be punished by fine or imprisonment. (Lanzetta v. New Jersey, supra, 306 U.S. at p. 452 [59 S.Ct. at pp. 618-619].) Observing that the word “gang” has numerous and varied meanings and is undefined by the common law, the Supreme Court determined that the descriptions and illustrations used by the lower court to ascribe meaning to the word “are not sufficient to constitute definition, inclusive or exclusive.” (Id. at p. 457 [59 S.Ct. at p. 621].) The court also found that “[t]he lack of certainty of the challenged provision is not limited to the word ‘gang’ or to its dependent ‘gangster.’ . . . The enactment employs the expression, ‘known to be a member.’ It is ambiguous. There immediately arises the doubt whether actual or putative association is meant. If actual membership is required, that status must be established as a fact, and the word ‘known’ would be without significance. If reputed membership is enough, there is uncertainty whether that reputation must be general or extend only to some persons. And the statute fails to indicate what it constitutes membership or how one may join a ‘gang.’ ” (Id. at p. 458 [59 S.Ct. at p. 621].) Because the statute condemned no act or omission, and the terms it used were so “vague, indefinite and uncertain” (ibid.), the court concluded that it violated the due process clause of the Fourteenth Amendment.

People v. Mirmirani, supra, 30 Cal.3d 375 , the other case petitioner relies upon, involved former provisions of the California Penal Code. Section 422 then prohibited threats made with the intent to terrorize, which was defined in section 422.5 as intimidation to achieve social or political goals. The trial court set aside the information and dismissed the prosecution of the defendant because there was no evidence to support a finding that the defendant made the threats to achieve social or political goals. The Supreme Court affirmed this ruling, holding that the phrase “social or political goals” contained in section 422.5 was unconstitutionally vague. The court pointed

out that the phrase has no established legal meaning and the dictionary definitions of the words “do not provide clear lines by which citizens, law enforcement officials, judges and juries can understand what is prohibited and what is not. flO The main problem with the statute is that it is all-inclusive. It is virtually impossible to determine what conduct by an individual in a democratic society could not in some way be construed as an attempt to achieve a ‘social’ or ‘political’ goal.” (30 Cal.3d at p. 384)

As should be readily apparent, the claims in Lanzetta and Mirmirani are completely different from that made here. Petitioner does not contend that any particular word or phrase appearing in the AWCA is undefined in law and uncertain; his argument is instead that the Act itself, or at least the several provisions thereof relied upon here by respondent, taken as a whole, are so ambiguous and uncertain that persons bound by the AWCA are not on notice of what they are required to do or are prohibited from doing. We have no quarrel with petitioner’s assertion that many of the provisions of the AWCA at issue in this case are ambiguous in certain respects; but we are also aware that “[mjany, probably most, statutes are ambiguous in some respects and instances invariably arise under which the application of statutory language may be unclear.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188 , 1201 [ 246 Cal.Rptr. 629 , 753 P.2d 585 ].). Moreover, with the AWCA in mind, our Supreme Court recently stated that the fact “[t]hat a criminal statute contains one or more ambiguities requiring interpretation does not make the statute unconstitutionally vague on its face.” (In re Jorge M., supra, 23 Cal.4th at p. 886, citing People v. Askey (1996) 49 Cal.App.4th 381 , 386-387 [ 56 Cal.Rptr.2d 782 ].)

Disposition

For the foregoing reasons, the judgment below is affirmed.

Lambden, J., and Ruvolo, J., concurred.

A petition for a rehearing was denied January 30, 2001, and appellant’s petition for review by the Supreme Court was denied April 11, 2001.