BILL ANALYSIS Ó
AB 604
Page A
Date of Hearing: April 23, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 604 (Ammiano) - As Introduced: February 20, 2013
As Proposed to be Amended in Committee
SUMMARY : Authorizes law enforcement agencies to adopt
regulations for conducting in person and photo line-ups; allows
expert testimony at trial regarding the reliability of
eyewitness identification; and requires the court to provide a
jury instruction advising that it may consider whether or not
law enforcement followed specified procedures when determining
the reliability of eyewitness identification. Specifically,
this bill :
1)Makes legislative findings and declarations regarding
eyewitness identification procedures and mistaken eyewitness
identifications.
2)Allows the admission of expert testimony regarding factors
that affect the reliability of eyewitness identification if
the proponent of the evidence establishes relevancy and proper
qualifications of the witness.
3)Permits local law enforcement agencies to adopt regulations
for conducting photo and live lineups with eyewitnesses and
encourages them to consider the following procedures when
doing so:
a) Prior to conducting the identification procedure, and as
close in time to the incident as possible, have the
eyewitness complete a standardized form describing the
perpetrator of the offense;
b) If practicable, have the investigator conducting the
identification procedure be a person who is not aware of
which person in the identification procedure is the
suspect;
c) Show photos used in an identification procedure
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sequentially, and not simultaneously;
d) Instruct an eyewitness of all the following before the
identification procedure:
i) That the perpetrator may not be among the persons in
the identification procedure;
ii) That the eyewitness should not feel compelled to
make an identification; and,
iii) That an identification or failure to make one will
not end the investigation.
e) If the identification procedure is being done
sequentially, instruct an eyewitness of all of the
following prior to the identification procedure:
i) Each photograph or person shall be viewed one at a
time;
ii) The photographs or persons shall be displayed in
random order;
iii) The eyewitness should take as much time as needed in
making a decision about each photograph or person before
moving to the next one; and,
iv) All photographs or persons will be shown to the
eyewitness, even if an identification is made before all
photographs or persons have been viewed.
f) Compose an identification procedure so that the fillers
generally fit the description of the person suspected as
the perpetrator, and in the case of a photo lineup, the
photograph of the person suspected as the perpetrator
resemble his or her appearance at the time of the offense
and does not unduly stand out.
g) If the eyewitness has previously viewed an
identification procedure in connection with the
identification of another person suspected of involvement
in the offense, have the fillers in the lineup in which the
person suspected as the perpetrator participates be
different from the fillers used in any prior lineups.
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h) In a live lineup, have any identification actions, such
as speaking or making gestures or other movements, be
performed by all lineup participants.
i) All live lineup participants shall be out of the view of
the eyewitness prior to the beginning of the identification
procedure.
j) Have only one suspected perpetrator included in any
identification procedure.
aa) Have all witnesses separated when viewing an
identification procedure.
bb) If the eyewitness identifies a person he or she believes
to be the perpetrator, then have all of the following
apply:
i) The investigator shall immediately inquire as to
the eyewitness's confidence level in the accuracy of
the identification; and,
ii) No information concerning the identified person
shall be given to the eyewitness prior to obtaining the
eyewitness's statement of confidence level.
cc) Have a written record of the identification procedure be
made that includes, at a minimum, all of the following:
i) All identification and non-identification
results obtained during the identification procedure
and signed by the eyewitness;
ii) A statement of the eyewitness' own words
regarding how certain he or she is regarding the
accuracy of his or her identification and signed by him
or her;
iii) The names of all persons present at the
identification procedure;
iv) The date, time, and location of the
identification procedure;
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v) If the identification procedure was conducted
sequentially, the order in which the photographs or
persons were displayed to the eyewitness;
vi) Color copies of all photographs used in a photo
lineup;
vii) Identification information and the sources of
all photographs used in a photo lineup; and,
viii) Identification information for all individuals
used in a live lineup and a video recording of the
lineup.
4)Defines the following terms for purposes of this section:
a) An "eyewitness" is a person whose identification of
another person may be relevant in a criminal investigation.
b) A "filler" is either a person or a photograph of a
person who is not suspected of an offense and is included
in an identification procedure.
c) An "identification procedure" is either a photo lineup
or a live lineup.
d) An "investigator" is the person conducting the live or
photo lineup.
e) A "live lineup" is a procedure in which a group of
persons, including the suspect and other persons not
suspected of the offense, is displayed to an eyewitness for
the purpose of determining whether the eyewitness is able
to identify the suspect as the perpetrator.
f) A "photo lineup" is a procedure in which an array of
photographs, including a photograph of the suspect and
additional photographs of other persons not suspected of
the offense, is displayed to an eyewitness for the purpose
of determining whether the eyewitness is able to identify
the suspect as the perpetrator.
5)Requires the court in any criminal trial or proceeding in
which a witness testifies to a pre-trial identification,
either in a photo or in-person lineup, to instruct the jury as
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follows:
a) The procedures listed in Penal Code Section 683.3 are
designed to decrease the likelihood of misidentification
when police conduct an identification procedure. As
jurors, you may consider evidence that police officers did
or did not follow those procedures when you decide whether
a witness in this case was correct or mistaken in
identifying the defendant as the perpetrator of the crime.
b) Use of these procedures alone does not mean that the
witness is correct or credible, only that police followed
procedures that decrease the likelihood that the witness
will make a mistake during the lineup or other
identification procedure.
c) If police officers did not follow the procedures
recommended in Penal Code Section 683.3, you may consider
the eyewitness identification with caution and close
scrutiny. This does not mean that you may arbitrarily
disregard his or her testimony, but you should give it the
weight you think it deserves in the light of all the
evidence in the case.
EXISTING LAW :
1)Provides that no evidence is admissible unless it is relevant.
(Evidence Code Section 350.)
2)Provides that all relevant evidence is admissible unless it is
made inadmissible by some constitutional or statutory
provision. (Evidence Code Section 351.)
3)Specifies that relevant evidence shall not be excluded in any
criminal proceeding, unless it is made inadmissible by a
statute passed by a two-thirds vote of each house of the
Legislature after the enactment of Proposition 8. [Cal.
Const., art. I, sec. 28(d).]
4)States that in determining the credibility of a witness, the
court or jury may consider any matter that has any tendency in
reason to prove or disprove the truthfulness of his testimony
at the hearing, including but not limited to, the extent of
his or her capacity to perceive, to recollect, or to
communicate any matter about which he testifies. [Evidence
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Code Section 780(c).]
5)Limits the testimony of lay or nonexpert witness only to facts
perceived by use of the witness's own senses. [Evidence Code
Section 800(a).]
6)Provides that a person is qualified to testify as an expert if
he or she has special knowledge, skill, experience, training,
or education sufficient to qualify him or her as an expert on
the subject to which his testimony relates. [Evidence Code
Section 720(a).]
7)States that if a witness is testifying as an expert, his or
her testimony in the form of an opinion is limited to such an
opinion as is:
a) Related to a subject sufficiently beyond common
experience that the opinion of an expert would assist the
trier of fact; and,
b) Based on matter (including his or her special knowledge,
skill, experience, training, and education) perceived by or
personally known to the witness or made known to him or her
at or before the hearing, whether or not admissible, that
is of a type that reasonably may be relied upon by an
expert in forming an opinion upon the subject to which his
or her testimony relates unless an expert is precluded by
law from using such matter as a basis for his opinion.
(Evidence Code Section 801.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The goal of a
law enforcement criminal investigation is to find and
apprehend the person or persons responsible for committing a
crime. Eyewitness identification procedure studies indicate
that the criminal justice system can significantly decrease
the rate of erroneous eyewitness identifications by
implementing changes to identification procedures. A decrease
in the number of erroneous eyewitness identifications will
increase public trust in the criminal justice system, which,
in turn, will increase the ability of law enforcement and
prosecutors to convict the guilty and protect our
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communities."
2)Concerns Regarding Eyewitness Misidentification : According to
a study published in the Psychology, Public Policy and Law
Journal, "One explanation for the high prevalence of rape and
sexual assault cases among exonerations is recent improvements
in DNA technology that can now be used not only to identify a
perpetrator of rape at trial, but also to clear an individual
of the crime both before and after conviction. Mistaken
eyewitness identification was involved in 88% of the rape and
sexual assault cases. This suggests that unexposed mistaken
identification could be present in other convictions that
heavily rely upon eyewitness identifications, such as robbery
cases where DNA evidence is not normally present. Among the
80 cases in which rape defendants were subsequently exonerated
and the race of both parties was known, 39 of the cases
involved black men who were wrongfully convicted of raping
white women, and nearly all of these cases involved mistaken
eyewitness identifications. Since less than 10% of all rapes
in the United States involve white victims and black
perpetrators, the fact that a disproportionate number of the
rape exonerations involve white victims misidentifying black
suspects suggests that the risk of error is greater in
cross-racial identifications. Research has consistently
confirmed that cross-racial identifications are not as
reliable as within-race identifications." [Symposium, "The
Other Race Effect and Contemporary Criminal Justice:
Eyewitness Identification and Jury Decision Making" (2001), 7
Psychology, Pub. Policy & Law, 3-262.]
3)Recommendations of the Commission on the Fair Administration
of Justice: The Commission on the Fair Administration of
Justice was created by SR 44 (Burton) in 2004. Chaired by
former Attorney General John Van de Kamp it was a bi-partisan
commission formed to study and review the administration of
criminal justice in California, determine the extent to which
that process has failed in the past, to examine ways of
providing safeguards and making improvements in the way the
criminal justice system functions and to make recommendations
and proposals designed to further ensure that the application
and administration of criminal justice in California is just,
fair and accurate.
The first Report and Recommendations of the Commission, released
on April 13, 2006 was on the subject of eyewitness
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identification procedures. In order to reach their
recommendations the commission looked at reports from other
commissions, available research, guidelines adopted by the
U.S. Department of Justice, other states and Santa Clara
County, California and took testimony at a public hearing on
March 15, 2006. Ten of the twelve recommendations were
adopted unanimously with dissent by three members to the two
remaining recommendations. The Commission's recommendations
were as follows:<1>
a) Double-blind identification procedures should be
utilized whenever practicable so the person displaying
photos in a photo spread or operating a lineup is not aware
of the identity of the actual suspect. When double-blind
administration is not practicable, other double-blind
alternatives should be considered.
b) When double-blind procedures are utilized, the use of
sequential presentation of photos and lineup participants
is preferred so the witness is only presented with one
person at a time. Photos or subjects should be presented
in random order, and witnesses should be instructed to say
yes, no or unsure as to each photo or participant.
Sequential procedures should not be used where double-blind
administration is not available. (Members Lockyer, Fox and
Totten dissented to this recommendation, see below.)
c) A single subject show-up should not be used if there is
probable cause to arrest the suspect. The suggestiveness
of show-ups should be minimized by documenting a
description of the perpetrator prior to the show-up;
transporting the witness to the location of the suspect;
and where there are multiple witnesses, they should be
separated; and lineups or photo spreads should be used for
remaining witnesses after an identification is obtained
from one witness.
d) All witnesses should be instructed that a suspect may or
may not be in a photo spread, lineup or show-up, and they
should be assured that an identification or failure to make
an identification will not end the investigation.
--------------------------
<1> For a complete copy of the Commission's report, the
dissent, and the response to the dissent, please see the
Commission's Web site: http://www.ccfaj.org/index.html
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e) Live lineup procedures and photo displays should be
preserved on videotape, or audiotape when video is not
practicable. When videotaping is not practicable, a still
photo should be taken of a live lineup. Police acquisition
of necessary video equipment should be supported by
legislative appropriations.
f) At the conclusion of a lineup, photo presentation, or
show-up, a witness who has made identification should
describe his or her level of certainty, and that statement
should be recorded or otherwise documented and preserved.
Witnesses should not be given feedback confirming the
accuracy of their identification until a statement
describing level of certainty has been documented.
g) A minimum of six photos should be presented in a photo
spread, and a minimum of six persons should be presented in
a lineup. The fillers or foils in photo spreads and
lineups should resemble the description of the suspect
given at the time of the initial interview of the witness
unless this method would result in an unreliable or
suggestive presentation.
h) Photo spreads and lineups should be presented to only
one witness at a time; where separate presentation is not
practicable, witnesses should be separated so they are not
aware of the responses of other witnesses.
i) Training programs should be provided and required to
train police in the use of recommended procedures for photo
spreads, show-ups and lineups. The Legislature should
provide adequate funding for any training necessitated by
the recommendations of this Commission.
j) Training programs should be provided and required for
judges, prosecutors and defense lawyers, to acquaint them
with the particular risks of cross-racial identifications,
as well as unreliable identification procedures, and the
use of expert testimony to explain these risks to juries.
The Legislature should provide adequate funding for any
training necessitated by the recommendations of this
Commission.
aa) The standardized jury instructions utilized in
eyewitness identification cases to acquaint juries with
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factors that may contribute to unreliable identifications
should be evaluated in light of current scientific research
regarding cross-racial identifications and the relevance of
the degree of certainty expressed by witnesses in court.
(Members Lockyer, Fox and Totten dissented to this
recommendation, see below.)
bb) The Commission recognizes that criminal justice
procedures, including eyewitness identification protocols,
greatly benefit from ongoing research and evaluation.
Thus, the Commission recommends the continued study of the
causes of mistaken eyewitness identification and the
consideration of new or modified protocols.
Then Attorney General Lockyer and District Attorneys Fox and
Totten did not agree that sequential lineups should be
designated as the preferred method and filed a dissent to that
recommendation. They believe that a recent Illinois study
calls into question the accuracy of these types of lineups.
In response to the dissent, the Chair noted that the debate
over simultaneous vs. sequential lineups is not over. The
Illinois study was considered by the Commission; but instead
of relying on one study, they relied on other studies and
recommendations adopted in other jurisdictions that were
consistent. The Chair noted that the recommendation "is
simply at the present time, based upon our analysis of the
available research, sequential identification procedures are
preferred."
Then Attorney General Lockyer and District Attorneys Fox and
Totten also did not agree with the recommendation that the
jury instruction be evaluated in light of current scientific
evidence. They noted that they "do not believe that this
Commission should be interjecting itself into the development
of jury instructions" which has been delegated to the Judicial
Council by the Chief Justice. In response, Chair Van de Kamp
noted that the Advisory Committee invites suggestions and the
Judicial Council regularly seeks comment.
Presently, the Judicial Council has a Criminal Jury
Instruction Advisory Committee which "[r]egularly reviews case
law and statutes affecting jury instructions and makes
recommendations to the council for updating, amending, and
adding topics to the council's criminal jury instructions."
(See .)
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4)Jury Instruction Provision : There is currently a jury
instruction regarding eyewitness identification which
instructs on factors to consider in evaluating this evidence.
It includes a few factors regarding pretrial identification
procedures. CALCRIM No. 315 states:
"You have heard eyewitness testimony identifying the defendant.
As with any other witness, you must decide whether an
eyewitness gave truthful and accurate testimony.
"In evaluating identification testimony, consider the following
questions:
"Did the witness know or have contact with the defendant before
the event?
"How well could the witness see the perpetrator?
"What were the circumstances affecting the witness's ability to
observe, such as lighting, weather conditions, obstructions,
distance, [and] duration of observation[, and
_________________
]?
"How closely was the witness paying attention?
"Was the witness under stress when he or she made the
observation?
"Did the witness give a description and how does that
description compare to the defendant?
"How much time passed between the event and the time when the
witness identified the defendant?
"Was the witness asked to pick the perpetrator out of a group?
"Did the witness ever fail to identify the defendant?
"Did the witness ever change his or her mind about the
identification?
"How certain was the witness when he or she made an
identification?
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"Are the witness and the defendant of different races?
"[Was the witness able to identify other participants in the
crime?]
"[Was the witness able to identify the defendant in a
photographic or physical lineup?]
"[_________________ .]
"Were there any other circumstances affecting the witness's
ability to make an accurate identification?
"The People have the burden of proving beyond a reasonable doubt
that it was the defendant who committed the crime. If the
People have not met this burden, you must find the defendant
not guilty."
The jury instruction proposed in this bill advises the jury that
certain procedures are designed to decrease the likelihood of
misidentifications; that it may consider whether these
procedures were followed; and that if they were not followed,
the eyewitness identification should be viewed with caution.
In People v. Wright (1988) 45 Cal.3d 1126, the California
Supreme Court considered a proposed defense instruction
advising the jury that eyewitness identification testimony may
be mistaken and "should be viewed with caution." (Id. at p.
1152.) Specifically, the requested instruction said, "Where
the prosecution has offered identification testimony, that is,
the testimony of an eyewitness that he saw the defendant
commit the act charged, such testimony should be received with
caution. An identification by a stranger is not as
trustworthy as an identification by an acquaintance. Mistaken
identification is not uncommon, and careful scrutiny of such
testimony is especially important." (Ibid.) The Court found
that the instruction was improper in that "it goes beyond
previously approved cautionary instructions by informing the
jury not only that it should view the eyewitness
identification evidence with caution, but also that such
evidence is frequently unreliable and misidentification is
'not uncommon.'" (Id at p. 1154.)
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The instruction required by this bill is distinguishable from
the one rejected in Wright, supra, 45 Cal.3d 1126. This
instruction only advises that if best practices were not used
in the pretrial identification procedures, then the subsequent
identification should be viewed with caution. It does not
consider all eyewitness identifications suspect.
The language proposed by this bill uses some of the same
language in the instruction codified in Penal Code Section
1127a relating to in-custody informants. Penal Code 1127a(b)
requires the court to instruct the jury as follows: "The
testimony of an in custody informant should be viewed with
caution and close scrutiny. In evaluating such testimony, you
should consider the extent to which it may have been
influenced by the receipt of, or expectation of, any benefits
from the party calling that witness. This does not mean that
you may arbitrarily disregard such testimony, but you should
give it the weight to which you find it to be entitled in the
light of all the evidence in the case." (Emphasis added.)
5)Constitutional Implications : The United States Supreme Court
has recognized that "the vagaries of eyewitness identification
are well known, the annals of criminal law are rife with
instances of mistaken identification." [United States v. Wade
(1967) 388 U.S. 218, 228.] The Court has recognized due
process is denied if the identification procedures used are so
unduly suggestive as to give rise to a substantial likelihood
of mistaken identification. [Neil v. Biggers (1972) 409 U.S.
188, 196-98.] Additionally, an identification made at trial
which is derived from suggestive pretrial identification
procedures violates due process. [Id. at p. 196; see also
Simmons vs. United States (1968) 390 U.S. 377, 384.]
6)Argument in Support : The American Civil Liberties Union of
California (a co-sponsor of this bill) states, "Mistaken
eyewitness identification is one of the greatest causes of
wrongful convictions. Seventy-five percent of convictions
overturned through DNA testing involved mistaken
identifications by eyewitnesses. According to the National
Registry of Exonerations, forty nine innocent people have been
exonerated in California due to mistaken eyewitness
identification, just since 1989. This includes Franky
Carrillo, who at the age of only 16 became a suspect in a
drive by shooting after police mistakenly identified him as
the shooter in another incident. Mr. Carrillo was released
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from prison a free man in March of 2011 after spending twenty
years in prison fighting for his innocence.
"AB 604 is important and timely legislation that authorizes law
enforcement agencies to use eyewitness identification
procedures that are scientifically proved to reduce the risk
of mistaken identifications. These procedures, such as those
recommended by the International Association of Chiefs of
Police and the American Bar Association, are readily available
and have proven effective in other states along with several
local law enforcement agencies in California.
"Additionally, AB 604 will inform jurors of these best practices
by requiring trial judges to give juries instructions about
witness identification procedures. The instruction will tell
jurors that they can take into account the way in which the
identification took place, and whether it met certain
criteria. This information will help jurors accurately
determine if the eyewitness identification is reliable,
helping to prevent the wrongful conviction of innocent people.
"We know California can significantly decrease the rate of
wrongful convictions by passing AB 604. In doing so, AB 604
will also increase public trust in the criminal justice
system, which, in turn, will increase the ability of law
enforcement and prosecutors to convict the guilty and protect
our communities."
7)Argument in Opposition : According to the Los Angeles District
Attorney's Office , "AB 604 purports not to be a mandate on
local law enforcement because the bill states it merely
authorizes any law enforcement agency to adopt regulations for
conducting photo and live lineups with eyewitnesses. However
when you look closer this bill is in reality an unfunded
mandate on local law enforcement agencies. Under the
provisions of AB 604 in any prosecution that uses eyewitness
identification that is not made pursuant to the supposedly
discretionary regulations would result in the trial court
being mandated to provide the jury with a set of jury
instructions adverse to the prosecution?.
"We also do not believe the Legislature should be interjecting
itself into the development of jury instructions. This task
has been delegated to the Judicial Council of California by
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the Chief Justice, and the criminal jury instructions that are
in use now were promulgated over an eight-year period that
included numerous levels of review by all interested parties.
Additionally, there is more than adequate authority for a
trial judge to issue a special instruction in any case when
the facts and evidence warrant a deviation from the standard
instruction. Moreover, instructions should be neutral,
favoring neither party. Trial courts are advised to refuse an
instruction that analyzes specific evidence on a disputed
question of fact to the benefit of one party or another or one
that informs jurors that particular evidence is in fact true -
or untrue. Thus, we do not believe altering the standard
instruction in order to deal with a special situation
represents sound public policy.
"AB 604 would require California to adopt policies that are
based on an assumption that law enforcement officers who
conduct thousands of eyewitness identifications in California
each year are either dishonest or incompetent. This
assumption is not supported by any factual findings. There
has been no showing that the adversary system has proven
ineffective at identifying any unfairness that may have
influenced an eyewitness identification, and there certainly
has been no showing of widespread dishonesty or incompetence
on the part of California peace officers in this regard."
8)Prior Legislation :
a) AB 308 (Ammiano), of the 2011-12 Legislative Session,
would have provided that on or before July 1, 2012 the
Department of Justice (DOJ) and the Commission on Peace
Officers Standards and Training (POST), in consultation
with local law enforcement' prosecutors, defense attorneys,
and other legal experts, as specified, shall develop
guidelines for policies and procedures with respect to the
collection and handling of eyewitness evidence. AB 308 was
held on the Senate Appropriations Committee's Suspense
File.
b) SB 1591 (Ridley-Thomas), of the 2007-08 Legislative
Session, would have required the Department of Justice, in
consultation with specified law enforcement-related
entities, to develop guidelines for policies and procedures
with respect to collection and handling of eyewitness
evidence in criminal investigations by all law enforcement
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agencies operating in California. SB 1591 was held on the
Senate Appropriations Committee's Suspense File.
c) SB 1544 (Migden), of the 2005-06 Legislative Session,
also addressed the need for guidelines in eyewitness
identifications. SB 1544 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union of California (Co-Sponsor)
California Attorneys for Criminal Justice (Co-Sponsor)
California Public Defenders Association (Co-Sponsor)
Conference of California Bar Associations
Drug Policy Alliance
Friends Committee on Legislation of California
Hon. LaDoris Cordell, Ret.
John K. Van de Kamp, Former Attorney General of California
Legal Services for Prisoners with Children
Opposition
California District Attorneys Association
California State Sheriffs' Association
Los Angeles District Attorney's Office
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744