P. v. Leauasoga

Filed 8/20/07 P. v. Leauasoga CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed as modified.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Ituau Leauasoga appeals from the judgment sending him to prison for two, 25-years-to-life terms for using a gun in the first degree murder of Michael Decker. (See Pen. Code,  187, 12022.5, subd. (a), 12022.53, subd. (d).)[1] On appeal, Leauasoga contends the trial court erroneously instructed the jury regarding one term affecting self-defense and imperfect self-defense, the trial court improperly denied his request for juror identification information, and the prosecutor erred in his argument to the jury. Finally, he notes the sentencing court failed to accord him all the days of actual, presentence custody credit to which he was entitled. This last issue is correct as conceded by the Attorney General, and the judgment must be modified to correct the miscalculation. ( 1260.) In all other ways, the judgment is affirmed.

I

FACTS

This case exemplifies the absurd and extreme nature of road rage on todays freeways. Michael Decker was the passenger in a car driven by his younger stepbrother, Ryan Keil, when Jose Rodriguez, the driver of another car whose passenger was Leauasoga, happened to cut him off on the freeway. Leauasoga was six feet tall, weighed over 180 pounds and was 19 years old at the time. Decker weighed about 150 pounds, was of slight build and was+ 29 years.[2]

Rodriguez[3] was driving a black Honda, and Keil was driving a Mustang when the incident erupted. Keil, angered by the Hondas move, pulled alongside the Honda and started yelling and gesticulating obscenities at the Hondas occupants. Leauasoga reached down and pulled out a gun, aiming at the driver of the Mustang. Decker was aghast and told Keil, Its not worth it. Lets go. Keil backed off and took the first available exit which was Orangewood Avenue, but the Honda followed close behind them. The street was clogged with traffic, and a collision was narrowly avoided by Keil ramming on his brakes and sliding into the center median. However, this permitted Rodriguez to drive the Honda up against the Mustang. While Keil was pinned in his seat, Leauasoga aimed the gun at his face and yelled, What now? Keil froze, but Decker attempted to get out of the car. The Honda backed up, and Decker walked towards it, standing nearby, with his palms held up as if to say, What? Both of his hands were visibly empty, and he was not making any movements or statements of a threatening nature.[4] Nonetheless, Leauasoga pointed the gun and fired two shots, missing Decker. Leauasoga then turned the gun towards Keil, but Decker, panicking for his brothers safety, ran between the gun and Keil, shouting, No! Leauasoga then aimed directly at Decker and repeatedly fired into him, even after he fell.

The Honda sped off, but Keil immediately gave pursuit, ramming it in the rear at a nearby intersection. Keil, having inflicted obvious damage to the Honda, returned then to the scene to assist his brother. Residents in the area had immediately come to Deckers aid, but it was too late. He died of blood loss due to multiple gunshot wounds. Bullets taken from Deckers body were fired from a nine-millimeter, semiautomatic Beretta, as were the nine casings found at the scene.

A loadedBerettawith a bullet in the chamber and the hammer cockedwas found in a hedge a quarter mile from the abandoned Honda. A cellular phone and a partially consumed bottle of Sprite were located inside the car, and deoxyribonucleic acid (DNA) tests showed that Leauasoga had drunk from the bottle and handled the phone. There were also text messages addressed to him on the phones message bank.

Rodriguez testified for the prosecution, admitting he cut off a car on the freeway but maintaining that Leauasoga was the one who was angered by the cars occupants and insisted on following them. When the two cars found themselves against one another, Leauasoga pulled out the gun, stepped out of the car and fired once at Decker, who was standing near the Honda but with both hands visible and empty. Decker appeared angry to Rodriguez and, after flinching from the first rounds discharge, Decker charged their car. According to Rodriguez, Decker was reaching towards his pants waistband when Leauasoga opened fire on him. However, he admitted that he was not truthful when he initially told police that Decker had a gun. He also admitted that his initial statement to the police in which he said he saw something shiny in Deckers waistband was false, fabricated solely to assist Leauasoga.

Although Leauasoga never testified, he argued he was defending himself via witnesses who testified that the first shot was fired only after Decker started walking towards the Honda. Although no one heard Decker utter any words or make any threatening moves, he appeared angry to them. He never got any closer to the Honda than 10-to-12 feet, and they never saw him reach for a weapon at any time.[5]

II

DISCUSSION

A.     Jury Instructions

Leauasoga contends the trial court crucially misinformed the jury as to one principle relating to self-defense and imperfect self-defense, and then failed to recognize its error by denying his motion for new trial based on the same issue. The Attorney General disagrees, arguing the trial courts instruction was an accurate statement of the law, albeit a slight modification from CALJIC No. 5.17 on imperfect self-defense as defined in In re Christian S. (1994) 7 Cal.4th 768.

The trial court instructed the jury with the new pattern instructions regarding self-defense and imperfect self-defense found in CALCRIM Nos. 505, 522, 570, 571, 3471, 3472 and 3474. But the prosecution requested one instruction from the earlier set of pattern instructionsCALJIC No. 5.17not included in the new set. Specifically, the prosecution requested, and the trial court gave, the following statement: The [principle] of imperfect self-defense, and self-defense, is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversarys use of force, attack, or pursuit. (Emphasis added.)

The prosecutions instruction was not only taken from CALJIC No. 5.17, but it recites almost verbatim the first footnote in In re Christian S., supra, 7 Cal.4th at page 773, which states, It is well established that the ordinary self-defense doctrineapplicable when a defendant reasonably [original emphasis] believes that his safety is endangeredmay not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversarys attack or pursuit is legally justified. . . . For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense. (Italics added.)

The defense argues that the jury was misled through the use of the term, wrongful conduct. It is irrelevant to the invocation of self-defense, Leauasoga argues, if he engaged in behavior of a moral character or committed some trivial error, not amounting to a crime. However, he contends, the jury was not informed of the distinction between moral and legal misconduct. He fears the jury may have found him responsible for creating the situation simply by not letting the matter drop after Keil yelled at them for cutting him off.

The court instructed the jury that if the defendant provoke[d] a fight or quarrel with the intent to create an excuse to use force (CALCRIM No. 3472, as given) or engage[d] in mutual combat (CALCRIM No. 3471, as given) without attempting to cease all fighting, then the right of self-defense was unavailable. Leauasoga contends those two circumstances were the sole instances in which self-defense or imperfect self-defense would be unavailable. He argues the special instruction could have led a juror to conclude that had he committed some wrong not amounting to mutual combat or initiating a fight, he would still be barred from defending himself. Specifically, he hypothesizes the jury may have found he failed to ignore Keils angry gesticulations and just drive on, thus committing a moral wrong. He historically analyzes the forfeiture principle, noting that in its origins, felonious misconduct was required before an individual was barred from defending himself with deadly force. (See e.g., People v. Hecker (1895) 109 Cal. 451, 464.) He then observes that under recent case law, a defendant does not forfeit his right to use deadly force even though he originates the circumstances which ultimately lead to the fatal conflict, relying on People v. Vasquez (2006) 136 Cal.App.4th 1176, 1177-1178[6] and People v. Randle (2005) 35 Cal.4th 987, 991.[7]

Both the cases cited by Leauasoga provide that the trier of fact must be instructed on all pertinent principles of law reasonably raised by the facts of the case, including imperfect self-defense and imperfect defense of others. They do not hold that the facts of those cases establish an example of those types of voluntary manslaughter. The forfeiture rule is still appropriately given in conjunction with the instructions on the definition of imperfect self-defense.

Leauasoga responds that pattern instructions, although possibly helpful, are not the law. (See People v. Mojica (2006) 139 Cal.App.4th 1197, 1204, fn. 4.) That is quite true. However, that does not aid him in his argument, for the instruction he attacks takes its language from actual case law: In re Christian S., supra, 7 Cal.4th at page 773, footnote 1.

Leauasoga returns to the basis of his attack on the instruction by emphasizing that wrongful conduct, without a criminal nature, cannot result in depriving a person of his right to use deadly force if his adversary does something to trigger the need for such. Leauasoga argues that it could have appeared to Decker that he needed to use force against Leauasoga but that appearance could have been mistaken; that mistake should not be sufficient to bar Leauasoga from protecting himself against Deckers responsive, potentially injurious actions. (See generally People v. Minifie (1996) 13 Cal.4th 1055, 1068 [killing in apparent need of self-defense is tragedy but not murder]; People v. Gleghorn (1987) 193 Cal.App.3d 196, 201-202 [killing is justified based on what reasonable person in like circumstance would have done].)

A single instruction is not to be considered in isolation, but in consideration with all other instructions. (See People v. Adcox (1988) 47 Cal.3d 207, 241.) In Leauasogas trial, the court informed the jury of all the relevant principles of self-defense and imperfect self-defense, as well as all instructions defining and detailing the forfeiture rule, to wit: A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [] If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendants belief in the need to use deadly force was reasonable. [] . . . .[] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [] In evaluating the defendants beliefs, consider all the circumstances as they were known and appeared to the defendant. [] . . . . [] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder. (CALCRIM No. 5.71, as given.)

The jury learned of the forfeiture rule when the trial court informed it that a person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force (CALCRIM No. 3472, as given), and that a person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if: [] 1. He actually and in good faith tries to stop fighting; AND [] 2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting[;] AND [] 3. He gives his opponent a chance to stop fighting. [] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. [] If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting. (CALCRIM No. 3471, as given.) Finally, the trial court told the jury that the right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends. (CALCRIM No. 3474, as given.) Finally, the court, in accord with all the instructions on self-defense, noted that a defendant is not required to retreat. He is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating. [] . . . . [] The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder or voluntary manslaughter. (CALCRIM No. 505, as given; emphasis added.)

Thus, the special instruction merely informed, in the verbatim language of case law, that mutual combat and initial aggression are not the sole examples of unlawful conduct that could result in forfeiture. But to balance that statement, the trial court also instructedto Leauasogas benefitthat even if the jury found Leauasoga engaged in conduct of mutual combat or initial aggression, that did not deprive him of the right to defend himself if it found Decker responded by using deadly force to a non-deadly threat or persisted with deadly force after Leauasoga had sufficiently withdrawn from the conflict. The short and long of it[8] is that the jury heard a balanced presentation of all relevant rules of law reasonably raised by the facts as presented by both the prosecution and the defense.

Nonetheless, the defense desires us to state unequivocally that the language in Christian S. encompassing the generalized term, unlawful or wrongful conduct, is wrong. We cannot say that as the authority provided us fails to establish such an exclusive limitation, and authority exists to the contrary. (See People v. Hardin (2000) 85 Cal.App.4th 625, 630, fn. 2.) Moreover, the undisputed testimony in this case establishedat the very leastthat Leauasoga brandished the gun at the Mustangs occupants, if not assaulted Keil with a firearm,[9] long before the fatal encounter occurred with Decker. Keils testimony was substantiated by that of Rodriguez, which was not contradicted by any defense testimony. Thus, Leauasogas fear that the jury may have applied the instruction inappropriately by convicting him simply because he failed to ignore Keils gestures and drive away, is unwarranted. It is clear that no error could have possibly contributed to the defendants conviction. (See People v. Guzman (2000) 80 Cal.App.4th 1282, 1290.)

B.     Prosecutorial Error

Leauasoga, although never having objected below, contends the prosecutor committed error in three ways, resulting in a deprivation of a fair trial. He alleges the prosecutor misstated the law by arguing in a manner that the jury must have interpreted to mean that only Decker had the right to defend himself. He also avers the prosecutor erred by vouching for his witness, Rodriguez, and for explaining during argumentbut without ever being sworn as a witnesshow and why the plea agreement with Rodriguez was drafted in the manner it was.

The Attorney General responds that a timely objection and request for a curative admonition were essential to preserve these claims. (See People v. Hill (1998) 17 Cal.4th 800, 820.) Leauasoga replies that any objection would have been futile as indicated by the courts alleged apparent acceptance of the prosecutions erroneous argument that only Decker had the right to defend himself. (Ibid.) However, there is no indication that an objection to the prosecutors vouching for his witness and referring to the drafting of the plea agreement would have been futile. As such, those claims are waived. Nonetheless, Leauasoga pursues these claims, arguing his counsel had to be incompetent for failing to object.

To make an objection to single instances of fact-based arguments is clearly a tactical decision falling well within a trial attorneys power to assess. [C]ompetent counsel may often choose to forgo even a valid objection. In the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jurys apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal. [Citation.] (People v. Riel (2000) 22 Cal.4th 1153, 1197.) Without more, the mere absence of an objection to the prosecutors argument was a tactical choice by the defense.

Thus, we address only the merits of the argument concerning the alleged misstatement of law relating to only one party having the right of self-defense. The other two instances, having occurred only once in argument, were waived.

Prosecutorial error warranting reversal under federal law occurs when a prosecutors wrongdoing so infects the trial with unfairness as to make the resulting conviction a denial of due process. [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair. [Citations.] (People v. Frye (1998) 18 Cal.4th 894, 969.) However, the issue as to the unfairness is decided on the whole record and not in isolation. (People v. Bell (1989) 49 Cal.3d 502, 535.)

Leauasoga contends the prosecutor repeatedly argued that self-defense only belongs to one person, only belongs to one side and that one side was Decker, not him. He presents the scenario in which both individuals may, based on their opposing viewpoints, have sincerely believed the other person was advancing on him to do harm. Thus, both were entitled to invoke self-defense based on their respective perceptions. (See People v. Minifie, supra, 13 Cal.4th at 1068 [If the defendant kills an innocent person, but circumstances made it reasonably appear that the killing was necessary in self-defense, that is tragedy, not murder.].) Leauasoga interprets the prosecutors argument as a declaration that Deckers right to defend himself extinguished the right of anyone else to invoke the doctrine.

The prosecutor did not make such a statement. In discussing the forfeiture rule concerning initial aggressors or mutual combatants, the prosecutor argued that even if the jury should find Decker and Keil were initial aggressors or mutual combatants, their efforts to withdraw from combat by turning off the freeway and attempting to flee the area placed them in a position to invoke the doctrine once Leauasoga pursued them with lethal force. At that point, the prosecutor noted that if a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. . . . Self-defense only belongs to one person, only belongs to one side [in such a situation]. Now, when they get off the freeway, defendants the aggressor. [] Decker and []Keil have the right to self-defense. [] Only one person is entitled to self-defense, and this law right here says the principle of imperfect self-defense and self-defense is not available if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversarys use of force, attack, or pursuit. . . .

In context, the prosecutors argument was a correct statement of the forfeiture rule. He did not say that only Decker had the right to invoke the doctrine of self-defense or imperfect self-defense. He said that if Decker and Keil had been the initial aggressors or mutual combatants, their subsequent conduct constituted a sufficient withdrawal to permit them to invoke the doctrine in response to Leauasogas pursuit and use of deadly force. In that factual scenariohad the jury found it to be trueonly one side could lawfully clothe itself with the doctrine. But the argument could have easily been applied to the opposite construct: That if the jury found Leauasoga to be a mutual combatant or initial aggressorhe was the first and only person to ever exhibit a weaponhe could still defend himself if he evidenced his desire to withdraw from the conflict while his opponent continued to pursue it.

A prosecutor may state to the jury the various conclusions that he draws from the evidence and may suggest what conclusions, in his opinion, should be drawn from the evidence introduced. [Citation.] (People v. Milner (1988) 45 Cal.3d 227, 245.) That is exactly what this prosecutor did. No error occurred.

C.     Juror Identification Information

Leauasoga complains that the trial court denied his request for juror identification necessary to investigate a claim of potential juror misconduct. Specifically, he alleges that one juror divulged to a defense investigator that three or four jurors overtly discussed the fact that Leauasoga did not testify, in violation of the courts explicit instruction. However, this summary fails to be supported by the record. Nonetheless, he contends his presentation to the trial court comprised a case of juror misconduct, and thus, the court erred when it denied his request for jurors identifying information.

Upon delivery of a conviction, the jurys identifying information is sealed. (See Code Civ. Proc.  237, subd. (a)(2).) A petition to access such sealed information must establish a prima facie showing of good cause through an attached declaration supporting the need for such. (See Code Civ. Proc.  206, subd. (g), 237, subd. (b).) If the trial court is persuaded that the prima facie showing of juror misconduct has been met, a hearing is set to determine the merits of the request. (See People v. Jefflo (1998) 63 Cal.App.4th 1314, 1320-1322.) A trial courts assessment of good cause, as shown through its denial of a hearing on the issue, is reviewed for abuse of discretion. (See People v. Jones (1998) 17 Cal.4th 279, 317.)

The written request accompanied by a declaration by the defense investigator, setting out that one juror phoned the public defenders office after the verdict was returned and inquired as to the defendants sentence. After sentence was imposed, the investigator returned the call and generally asked if that juror had any

concerns about the deliberation process. The juror responded that it would have been helpful had they been informed of the defendants state of mind at the time of the shooting. . . . Without knowing what the defendants state of mind was at the time of the shooting it made it difficult to decide if it was first or second degree murder. This statement resulted in another phone call in which this juror emphatically declared that the other jurors did not directly discuss the fact Leauasoga did not testify. This juror said that during the first day of deliberation a couple of jurors voiced the opinion they would [have] liked the defendant to have testified. The juror then refused to sign any declaration including these statements.

A court has broad discretion in assessing good cause for the sealed information identifying the jurors. (See People v. Avila(2006) 38 Cal.4th 491, 604-605.) As shown in Avila, when a juror declines to testify as to what occurred in jury deliberation, a refusal to conduct a hearing on the merits is appropriate. In essence, that is what occurred here. A juror alleged that certain statements, not amounting to misconduct per se, were made, but the alleging juror refused to sign any declaration as to those statements. The value of such information was for the trial court to assess. This court found no good cause was shown, and that assessment was appropriate in the face of the jurors refusal to testify. (Ibid.) The defense has failed in its burden to establish an abuse of discretion.

D. Sentencing Error

The Attorney General concedes the trial court erred when it accepted the probation reports statement that Leauasoga had served 768 days of custody. Thus, the judgment must be modified to reflect 779 days of presentence custody, and the clerk of the superior court is ordered to correct the abstract of judgment, and then to send a copy of the corrected abstract to the Department of Corrections. In all other ways, the

judgment is affirmed.

SILLS, P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

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[1] All further section references are to the Penal Code unless otherwise stated.

[2] According to the probation officer, Decker was 29 at his death, although his stepfather said he was 27 in a written statement submitted at the sentencing hearing.

[3] Rodriguez was allowed to plead guilty to voluntary manslaughter as an aider and abettor of the present offense with a sentence of time served, conditioned on his truthful testimonyfor the prosecution. He was also given limited immunity for that testimony.

[4] Residents of the neighborhood witnessed the moment of the shooting, and all of them confirmed that Decker had no weapon and approached the Honda casually. Although twowitnesses testified Decker advanced on the Honda and Leauasoga stepped out of it, ordering Decker to stop, all others testified Decker had stopped before the shooting commenced and that Leauasoga never got out of the car at all, firing the gun while seated inside the car.

[5] Appellate counsel for Leauasoga argues that the defense evidence contradicted the prosecution evidence on two pivotal points: (1) The Mustang had violently veered at the Honda on at least two occasions during the incident as if to ram it, and (2) no shots were fired until after Leauasoga ordered Decker to stop coming towards the Honda and he refused. However, counsel concedes the jury clearly rejected these defense factual allegations in favor of the prosecution case. Therefore, we must reject them as well due to the presumption in favor of the jurys factual findings.

[6] In People v. Vasquez, supra, 136 Cal.App.4th 1176, Vasquez was entitled to have the jury instructed as to the elements of imperfect self-defense even though he started the argument with the victim by accusing him of forcibly sodomizing Vasquezs deceased younger brother. Because Vasquez was crippled and in a wheelchair, the appellate court held such an instruction was essential, in light of the evidence that the victim started choking Vasquez before he pulled out the gun and shot him. However, the reviewing court did not determine that Vasquez either acted under imperfect self-defense and or was barred from invoking the defense. That decision was for the jury, but it had to be informed of the principle of imperfect self-defense before it could decide the question.

[7] In People v. Randle, supra, 35 Cal.4th 987, the defendant was entitled to have the jury instructed on imperfect defense of others, even though such a form of voluntary manslaughter is not statutorily authorized. The reviewing court held that a defendant may show that malice aforethought is negated when he, in company with his cousin, shoots and kills a man for beating up that cousin, even though the defendant and his cousin were initially caught stealing a car stereo from a car in front of the victims house. The victim pursued Randle and his cousin, overwhelming the cousin and severely beating him, even after the stereo was returned to the victim. But the jury, if believing Randle did not pull out his gun until after the victim retrieved the stereo and still continued the assault, could consider imperfect defense of others under such a scenario.

[8] Giving credit where credit is due, we thank the court in People v. Olmsted (2000) 84 Cal.App.4th 270, 275 (quoting from Shakespeares Merry Wives of Windsor, act II, scene 2, line 62) for the phrase.

[9] In his reply brief, Leauasoga replies that any assault on Keil does not provide grounds for Decker to respond with force against Leauasoga, particularly as Leauasoga was trapped in the passenger seat at the time. However, there was no evidence that Leauasoga was trapped in the passenger seat at any time. To the contrary, two witnesses, Marcos Ventura and Rodriguez, testified that Leauasoga stepped out of his car and then started shooting. Moreover, if Leauasoga assaulted Keil with a firearm in Deckers presence, Decker would be entitled to use force to defend a third party. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses,  65, pp. 400-401; see People v. Michaels (2002) 28 Cal.4th 486, 530 [defense of others applies even if the belief is unreasonable].)