Morris Lenk, Deputy Attorney General, San Francisco, CA, for the People.

Marylou Hillberg, Attorney at Law, Sebastopol, CA, for Tommy Lee Fryman.

Transferred to Court of Appeal, Sixth District, with directions to vacate its decision and to reconsider the cause in light of People v. Floyd (2003) 1 Cal.Rptr.3d 885, 72 P.3d 820.

GEORGE, C.J., and KENNARD, BAXTER, WERDEGAR, CHIN and MORENO, JJ, concur. BROWN, J., is of the opinion the matter should be retained.