¶1John Paul Balazs, Law Offices of John P. Balazs, Sacramento, CA, for Petitioner-Appellant.
¶2Phillip Lindsay, Esquire, Office of the Attorney General, San Diego, CA, for Respondent-Appellee.
¶3ORDER
¶5Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel *1139opinion shall not be cited as precedent by or to any court of the Ninth Circuit.