Filed 11/2/18 P. v. Beavers CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge.

Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant Stephen Beavers was convicted by no contest plea of escape or attempted escape from a detention facility and escape or attempted escape from a detention facility by use of force or violence. On appeal, he contends the trial court abused its discretion when it denied (1) his motion to withdraw his plea and (2) his request to dismiss or strike his prior felony conviction allegation. We reverse the conviction for escape from a detention facility (Pen. Code, § 4532, subd. (b)(1)).[1] In all other respects, we affirm.

PROCEDURAL SUMMARY

On September 26, 2016, the Kern County District Attorney charged defendant with escape (or attempted escape) from a detention facility (Pen. Code, § 4532, subd. (b)(1); count 1) and escape (or attempted escape) from a detention facility by use of force or violence (§ 4532, subd. (b)(2); count 2). As to both counts, it was further alleged that defendant had suffered a prior felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served two prior prison terms (§ 667.5, subd. (b)).

On October 27, 2016, defendant entered a not guilty plea to both counts and denied the special allegations.

On December 9, 2016, defendant rejected a plea offer of 44 months.

On February 16, 2017, the trial court heard defendant’s Marsden[2] motion to substitute appointed counsel. When the court asked defendant what he thought defense counsel should be doing differently, defendant said his family had raised money for private counsel. Private counsel, however, was not present. The court asked whether, in the meantime, defendant had anything to complain about regarding defense counsel’s performance. Defendant answered, “She is a very good lawyer, sir. Like I said, there’s nothing. [¶] … [¶] I just feel like and my family feel like—as of yesterday, they told me they have gathered the money up. They just need, like, two weeks to talk to Kyle Humphrey. That’s the only thing I can tell you, sir.” The court told defendant defense counsel would continue representing him until private counsel appeared. The court found no reason to conclude that defense counsel was not representing defendant adequately, and it denied the motion.

On February 21, 2017, defendant pled no contest to both counts and admitted the special allegations. He entered the plea with the understanding that there was no indicated sentence.

On March 17, 2017, defendant filed a Romero motion to strike the prior felony conviction allegation and his two prior prison term allegations, or to reduce both current convictions to misdemeanors.

On March 23, 2017, defendant informed the trial court he wished to withdraw his plea and obtain new counsel. The court agreed to appoint new counsel.

On March 28, 2017, defendant appeared with new counsel.

On April 28, 2017, defendant filed a motion to withdraw his plea.

On May 11, 2017, after a hearing on the matter, the trial court denied the motion to withdraw the plea.

On May 25, 2017, the trial court denied defendant’s Romero[3] motion, found him ineligible for probation, and sentenced him to nine years in prison: the middle term of four years on count 2, doubled pursuant to the Three Strikes law, plus a one-year enhancement for one prior prison term;[4] and four years on count 1, stayed pursuant to section 654.

On May 30, 2017, defendant filed a notice of appeal. On May 31, 2017, the trial court granted his request for a certificate of probable cause.

FACTS[5]

Defendant was an inmate at the Male Community Reentry Program (MCRP) in Bakersfield with 33 other inmates.[6] Inmates lived in rooms rather than cells, but they were not allowed to leave and were required to wear ankle monitors.

On September 11, 2016, Correctional Officer Joseph Bermudez administered a random urine drug test to defendant and observed him filling the sample cup from a clear plastic tube strapped to his penis. Falsifying a drug test could have subjected defendant to an additional prison sentence.

A few hours later, Bermudez was informed by Parole Agent Marc Patterson that defendant’s ankle monitor was emitting a master tamper alert indicating it had been tampered with. Officers searched for defendant without success. They reviewed video surveillance footage and observed him jumping the facility’s back gate, running toward a waiting car, getting in, and leaving immediately. Patterson followed the ankle monitor’s signal and found it in a park one-half mile from the facility. It had been cut off.

On September 14, 2016, defendant was found and taken into custody. After being advised of his Miranda[7] rights, he explained that he knew he had screwed up. He said he was afraid he would be sent back to prison for failing the drug test. He planned to go to Mississippi to be with his family.

DISCUSSION

I. Motion to Withdraw Plea

Section 1018 provides, in relevant part, that a trial court may, “for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.” The defendant has the burden to establish good cause by clear and convincing evidence. (People v. Patterson (2017) 2 Cal.5th 885, 894.) To establish good cause, the defendant must show that the plea was the product of “mistake, ignorance, fraud, duress, or any other factor that overcomes the exercise of free judgment.” (People v. Ravaux (2006) 142 Cal.App.4th 914, 917.) “The fact that [the defendant] may have been persuaded, or was reluctant, to accept the plea is not sufficient to warrant the plea being withdrawn. [Citation.] ‘Guilty pleas resulting from a bargain should not be set aside lightly and finality of proceedings should be encouraged.’ ” (Id. at p. 919.) The defendant must establish that his free will was overcome, not merely that he had a change of heart. (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.)

“[P]lea bargaining is an integral component” and “critical stage in the criminal process at which a defendant is entitled to the effective assistance of counsel guaranteed by the federal and California Constitutions.” (In re Alvernaz (1992) 2 Cal.4th 924, 933 (Alvernaz).) “It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.” (Id. at p. 934.) As usual, the defendant must establish not only incompetent performance by counsel, but also prejudice. (Id. at p. 936-937; Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland) [to establish ineffective assistance of counsel, a defendant must show (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and (2) counsel’s deficient performance was prejudicial]; People v. Ledesma (1987) 43 Cal.3d 171, 216 [same].) “[A] defendant who pled guilty demonstrates prejudice caused by counsel’s incompetent performance in advising him to enter the plea by establishing that a reasonable probability exists that, but for counsel’s incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial.” (In re Resendiz (2001) 25 Cal.4th 230, 253, disapproved on other grounds in Padilla v. Kentucky (2010) 559 U.S. 256, 370.) A defendant’s self-serving assertion that he would have acted differently but for counsel’s ineffective assistance “must be corroborated independently by objective evidence. A contrary holding would lead to an unchecked flow of easily fabricated claims.” (Alvernaz, supra, at p. 938.)

Contrary to the usual case in which the defendant claims he accepted a plea offer because of counsel’s misadvisement, here defendant claims he rejected a plea offer because of counsel’s misadvisement, and then ended up with a less favorable offer he felt he had no choice but to accept. In cases like this, where a plea offer has lapsed or been rejected because of alleged ineffective representation (such as counsel’s misadvisement or lack of advisement), the prejudice question is not whether defendant would not have pled guilty and instead would have proceeded to trial, but whether he would have accepted the more favorable earlier plea offer had he been afforded effective assistance of counsel. (Missouri v. Frye (2012) 566 U.S. 134, 147 (Frye); see Alvernaz, supra, 2 Cal.4th at p. 936 [“we conclude the rendering of ineffective assistance by counsel, resulting in a defendant’s decision to reject an offered plea bargain and proceed to trial, constitutes a constitutional violation which is not remedied by a fair trial”].) Thus, “where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland’s inquiry … requires looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed.” (Frye, supra, at p. 148.)

“In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.” (Frye, supra, 566 U.S. at p. 148.) In other words, “it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” (Id. at p. 147.)

“A decision to deny a motion to withdraw a guilty plea ‘ “rests in the sound discretion of the trial court.” ’ ” (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) The trial court is the exclusive judge of credibility. (People v. Caruso (1959) 174 Cal.App.2d 624, 636.) The court need not “accept and give credence to the affidavits submitted in support of the motion.” (Ibid.) Nor is it required to “ ‘accept as true the sworn testimony of a witness, even in the absence of evidence contradicting it.’ ” (Ibid.) The court’s decision “is final unless the defendant can show a clear abuse of that discretion. [Citation.] Moreover, a reviewing court must adopt the trial court’s factual findings if substantial evidence supports them.” (People v. Fairbank, supra, 16 Cal.4th 1223, 1254.)

Here, defendant’s motion to withdraw his plea argued that good cause existed because he failed to comprehend the limitations of his available defenses. According to defense counsel’s declaration, prior counsel had been informed by CDCR that defendant’s credits had been miscalculated and he should have been released from prison prior to his escape due to resentencing under Proposition 47. Counsel stated that defendant discussed this with prior counsel and strongly believed being held past his proper release date was a valid defense to the charge of escape. Prior counsel did not inform him that his remedy for the unlawful detention was filing a writ of habeas corpus rather than walking away from the facility. Defendant also discussed with prior counsel the fact that he confronted no one during his escape and merely jumped a gate, and that defendant strongly believed this was a valid defense to the charge of escape by force or violence. Had he understood the limitations of these defenses, he would have accepted the earlier plea offer. Instead, he refused the offer, and later, when he finally understood he would not be able to assert the defenses he thought were meritorious, he was forced to plead to all counts and enhancements without an indicated sentence.

At the hearing, the trial court explained it believed case law established that defendant’s self-serving statements in his declaration needed to be corroborated independently by objective evidence. Alone, the statements were insufficient to sustain his burden of proof as to prejudice. Defense counsel asked if the court meant that even if the court credited defendant’s offer of proof as true, it would conclude the showing was insufficient to rise to the clear and convincing standard of good cause under section 1018. The court answered affirmatively, explaining that as it understood defendant’s argument, he was contending that when the offer was made, he did not understand he could not assert the defenses that he should have not have been in custody and that he did not use force or violence. And he contended that if he had known these were not defenses, he would have accepted the earlier offer, which was later withdrawn. At this point, defendant believed that his only remaining option was to plead to everything and hope for the best.

The trial court denied the motion, stating: “Based on that as I indicated, I don’t think [defendant’s] motion provides a sufficient basis for me to find good cause to allow him to withdraw the no contest plea and the admissions for the reasons stated in court when I discussed the issues, so therefore the motion is denied.”

We agree defendant failed to make an adequate showing of good cause to withdraw his plea. Although the record notes that he rejected a more favorable earlier offer of 44 months—more than five years less than the nine years he received under the later plea—he presented no independently corroborating evidence to show, for example, that defense counsel did in fact misadvise him on the merits of his defenses. Defendant’s own statements to this effect were not enough. (Alvernaz, supra, 2 Cal.4th at p. 945 [defendant’s self-serving statement in his declaration “that, had he been given adequate advice, he would have accepted the plea offer, is self-serving and thus insufficient in and of itself to establish prejudice”].) If, however, defendant possesses evidence outside the appellate record to corroborate his allegations and make the showing explained above, he may present his claim by way of a petition for writ of habeas corpus. (See People v. Williams (2013) 56 Cal.4th 630, 691 [some ineffective assistance claims “can be fully addressed only in a habeas corpus petition because they require investigation of evidence outside the record in order to potentially establish prejudice”]; People v. Mendoza (2007) 42 Cal.4th 686, 711 [“Whether defendant can establish prejudice based on facts outside of the record is a matter for a habeas corpus petition.”]; People v. Barella (1999) 20 Cal.4th 261, 272 [record on appeal did not definitively establish whether counsel acted as defendant asserted; defendant’s claim of ineffective assistance of counsel should be resolved in a habeas corpus proceeding rather than on appeal]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; see also People v. Jenkins (2000) 22 Cal.4th 900, 952 [review on direct appeal is limited to the appellate record].)

II. Romero Motion

Section 1385 grants trial courts the discretion to dismiss a prior strike conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) “ ‘A court’s discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with … section 1385[, subdivision] (a).’ ” (People v. Williams (1998) 17 Cal.4th 148, 158.) The Three Strikes law “was intended to restrict courts’ discretion in sentencing repeat offenders.” (Romero, supra, 13 Cal.4th at p. 528; People v. Garcia (1999) 20 Cal.4th 490, 501 [“a primary purpose of the Three Strikes law was to restrict judicial discretion”].) The Three Strikes law establishes “ ‘a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike,’ ” unless the sentencing court finds a reason for making an exception to this rule. (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) There are “stringent standards that sentencing courts must follow in order to find such an exception.” (Ibid.) In ruling on a Romero motion, “the court in question must consider whether, in light of the nature and circumstances of [the defendant’s] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, at p. 161.)

The defendant bears the burden of clearly showing the trial court’s decision not to strike a prior felony conviction allegation was arbitrary or irrational. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. (Carmony, supra, 33 Cal.4th at pp. 376-377.) “[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, ‘the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce [] an “arbitrary, capricious or patently absurd” result’ under the specific facts of a particular case. [Citation.] [¶] But ‘[i]t is not enough to show that reasonable people might disagree about whether to strike one or more’ prior conviction allegations. [Citation.] … Because the circumstances must be ‘extraordinary … by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors … manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion.” (Id. at p. 378.)

In this case, defendant’s criminal history began in 2000 when he was 14 years old and was found to have committed battery (§ 243, subd. (a)) and petty theft (§ 488), for which he received probation with 30 days in juvenile hall, and thereafter violated probation twice. Defendant’s prior adult convictions included the following: in 2008, he was convicted of misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), for which he received deferred entry of judgment, and thereafter violated probation and failed to appear in court repeatedly, receiving two jail terms; also in 2008, he was convicted of misdemeanor criminal threat (§ 422), for which he received three years of probation, and thereafter repeatedly failed to appear and received a jail term; also in 2008, he was convicted of misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), for which he received three years of probation after he failed to appear three times, then failed to appear again later and received a jail term; in 2010, he was convicted of misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a), for which he received three years of probation; also in 2010, he was convicted of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), for which he received three years of probation, thereafter violated probation and went to prison, and later received misdemeanor probation when the conviction was converted to a misdemeanor; also in 2010, he was convicted of first degree burglary (§ 460, subd. (a)), a serious felony (§ 1192.7, subd. (c)), for which he received two years in prison, but was paroled less than one year later in 2011; in 2012, he was convicted of receiving stolen property (§ 496, subd. (a)), after which he failed to appear and received 32 months in prison, plus 16 months more in prison for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), (which he apparently committed while failing to appear) for which he later received misdemeanor probation when the conviction was converted to a misdemeanor. He was incarcerated as an inmate at MCRP when he committed the current crimes.

Defendant’s 2010 first degree burglary conviction formed the basis of the prior felony conviction allegation.

The probation officer’s report noted that defendant’s prior dispositions and convictions were numerous, and that his prior performance on deferred entry of judgment, misdemeanor and felony probation, and parole had been unsatisfactory in that he violated terms and reoffended. The probation officer recommended the midterm of four years, doubled pursuant to the Three Strikes law, because defendant had not used force against a person.

Defendant’s Romero motion argued that (1) he had acknowledged his mistake and taken responsibility for his current offenses, demonstrating his “rehabilitative merits”; (2) his current offenses were relatively minor because he was not armed, did not hurt anyone, and complied with the parole agent’s orders when he was found; (3) his only use of force in the current offenses was removal of his ankle monitor; (4) he would not have been in custody at the time of his current offenses if his credits had been properly calculated; (5) his arrest for the prior strike conviction occurred in 2010 when he was an immature 24 years of age; (6) his criminal history and current offenses were the result of his addiction to drugs; and (7) his plea spared the county the expense of a jury trial.

Appended as exhibits were two letters. The letter from defendant explained that he accepted responsibility for walking away from the program and cutting off his monitor, and that he suffered in custody because he was in altercations with active gang members and was in protective custody. !(CT 161)! The letter from defendant’s wife expressed her belief that defendant had changed, found God, and wanted to improve the world. She asked the court to show mercy and send defendant home to his wife and children so he could “show the world his greatness” by mentoring youth.

At the sentencing hearing, defense counsel argued:

“I would ask the Court to give a great weight to the circumstances of the offenses. I would note that the probation report correctly points out that no force or threats to a person were used to qualify for the [(a)] count. The force involved was literally the jumping over a gate. The Court—the probation report also notes the only other felony conviction was receiving stolen property. I concede that he does have prior misdemeanors. He did have [a Health and Safety Code section] 11377, which was reduced to a misdemeanor.

“The Court has the discretion to strike the strike under Romero. I would note that the strike prior is seven years old. Frankly, every person that had a strike prior obviously hasn’t had a perfect record, but when we use Romero discretion, I would submit to the Court one should consider that he’s far from the worst of the worst. There should be given credit or emphasis to the fact that at the time of his escape, he was, in fact, being detained beyond his release date. It’s not an excuse, but it is a factor to consider. Obviously, he lacked the sophistication to bring a habeas action instead of self help.

“I would ask the Court also to consider [its] discretion in stating [sic] the [section] 667.5[, subdivision ](b) enhancement. I would urge the Court to consider the midterm of four years either with or without [granting the] Romero [motion]. With a Romero, I guess that would be a midterm. Without the Romero that would be low term, double. I think under the circumstances, that would be a far more appropriate disposition than the recommended nine years.”

The prosecutor responded as follows:

“Judge, in regards to the defendant’s criminal history, there has been a continuous history of criminal offenses stemming back from 2008, 2010, 2012, and there really has been no break in the defendant’s conduct since that time. In addition, in regards to the facts of the case, the defendant was not aware that he was—essentially had credits miscalculated and was overstaying his stay there in custody. He had the same state of mind as an individual who believed he was in custody for purposes of being incarcerated.”

Defense counsel submitted, but defendant added:

“I just basically throw myself at the mercy of the Court. Did I handle everything right? No. I should have let the cops know that I was fighting and all that. I was just not in my right state of mind.”

The court denied the Romero motion, stating:

“The defendant has requested that the Court, pursuant to the authority under Penal Code Section 1385[ ], strike the prior strike and dismiss the two prison priors. While the Court recognizes the defendant believes he should have been released from custody by the time he made his escape, he was nevertheless still serving his prison term when the escape occurred. To me, that does not show the defendant has rehabilitated himself to justify striking the strike as requested by the defendant.”

In our opinion, this is not an extraordinary case in which all reasonable people would agree that defendant falls outside the spirit of the Three Strikes law. (See Carmony, supra, 33 Cal.4th at p. 378.) Defendant’s record does not support the notion that he had demonstrated his “rehabilitative merits.” Instead, he repeatedly performed poorly on probation and parole, repeatedly failed to appear in court, and most recently escaped from MCRP and cut off his monitor, all of which demonstrated a lack of respect for the criminal justice system. While defendant is correct that he did not resort to violence in the commission of the current offenses, this factor did not remove him from the effects of the Three Strikes law. (See People v. Strong (2001) 87 Cal.App.4th 328, 340 [a criminal career need not have consisted entirely of violent or serious felonies to bring the defendant within the spirit of the Three Strikes law].) As the trial court noted, “Use of force in this case was only with respect to removal of his electronic monitoring. However, the Court does believe the crime has risen to the level of disregard for the judicial system. Antisocial behavior should not be taken lightly.” The prior strike conviction was not so remote to suggest defendant had otherwise led a crime-free life, and his record established he had not. (See People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [“remote” carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect on the error of his ways].) Finally, defendant’s alleged addiction to drugs did not operate to excuse his continuous commission of crimes and repeated failures to appear in court. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1511 [“drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment”].) In sum, defendant has not shown that the trial court’s decision not to strike the prior felony conviction allegation was arbitrary or irrational. We cannot say the trial court abused its discretion.

III. Lesser Included Offenses

A defendant cannot be convicted of both an offense and a lesser included offense. (People v. Ortega (1998) 19 Cal.4th 686, 692.) “ ‘ “The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” ’ ” (Id. at p. 704.) Escape from a detention facility (§ 4532, subd. (b)(1)) is a lesser included offense of escape from a detention facility by use of force or fear (§ 4532, subd. (b)(2)). As the bench note of CALCRIM No. 2761 Escape by Force or Violence explains: “Escape carries a more severe penalty if done with force or violence. (Pen. Code, § 4532[, subds.] (a)(2) & (b)(2).) If the defendant is charged with using force or violence, then the escape without force or violence is a lesser included offense. (People v. Gallegos (1974) 39 Cal.App.3d 512, 518-519.)”

An unauthorized sentence “is subject to judicial correction whenever the error comes to the attention of the reviewing court.” (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6) In the interest of judicial economy, we modify the judgment to strike defendant’s conviction and sentence on count 1 without requesting supplemental briefing. A party claiming to be aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)

DISPOSITION

The conviction on count 1 for simple escape under Penal Code section 4532, subdivision (b)(1) is reversed. The trial court shall prepare an amended abstract of judgment and forward a certified copy to the appropriate authorities. In all other respects, the judgment is affirmed.