P. v. Nash

Filed 7/12/07 P. v. Nash CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from the Superior Court of San Bernardino County. Douglas A. Fettel, Judge. Affirmed.

Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant Jarvin ONeal Nash of attempted burglary. (Pen. Code, 459.) The jury also found true that a person was present in the residence during its commission. Defendant was sentenced to 25 years to life under the Three Strikes law for the attempted burglary. On appeal, defendant argues that (1) the trial court erroneously denied defendants Wheeler/Batson^[1] motion by failing to inquire into the prosecutors reasons for his peremptory challenges, (2) the trial court abused its discretion by denying defendants Romero^[2]motion, and (3) specially appointed counsel failed to file a motion for new trial or a pleading consistent with Wende/Anders^[3] requirements. We conclude that the trial court correctly held the defense failed to prove a prima facie case of discrimination. We also conclude that the trial court did not abuse its discretion in denying defendants Romero motion. Finally, we determine that specially appointed counsel did not render ineffective assistance of counsel and we decline defendants invitation to create a requirement that trial counsel file a Wende/Anders type pleading in the trial court. As defendants assignments of error are without merit, we will affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

At 9:00 a.m. on July 16, 2004, victim Laura Mohlengraft was in bed when she heard the doorbell ring. When she got up to look through the peephole, she saw a young girl repeatedly ringing the doorbell 10 to 15 times. As the young girl continued ringing the doorbell and without opening the door, Mohlengraft went back to her bedroom to prepare to shower. At that time, she heard a loud crashing and banging sound coming from the rear of her house and went to investigate. Scared, she ran into her living room and saw two males in her backyard at the sliding glass door manipulating a wooden stick that was lodged between the sliding doors. It was being pushed out of the track and was about to fall out of the frame of the window. Taking a few steps towards the window, she approached the men and yelled What do you think youre doing? She noticed their clothing and their ethnicity, but without her glasses, she could not make out their facial features. She saw the men jerk their heads up, startled and surprised that someone was home, and run off in the backyard with the young girl from the front door with them. When the victim lost sight of the group, she immediately telephoned 911 to report the incident.

Fifteen minutes later, Mohlengraft received a phone call from an officer asking if she would come to another location with them to identify possible suspects. Mohlengraft recognized the young girl, and recognized the clothing and build of two of the men. At trial, she recognized defendants build. When defendant was interviewed by a detective, defendant admitted he was in the victims backyard and saw two other males trying to break into the window, but he did not participate. Defendant also admitted that he fled by climbing over a fence and scraped his hand in the process. Another officer observed that defendant had scrapes on his left palm.

The matter proceeded to jury trial. During voir dire, the prosecutor asked two jurors about their general attitudes regarding government resources being committed to an attempted burglary trial.

Juror No. 49 stated that she was a career development teacher who saw a student steal her CD player. When the teacher asked about the theft, the student denied taking it. The teacher was unable to retrieve the CD player and felt the student got away with it. Because the student was in the teachers advisor program and was, also, related to the bosss boss, she let the incident go, feeling that the price of a CD player was not worth the trouble it would arouse.

The prosecutor inquired of the jury panel if there were certain cases that the state should not bother prosecuting. The prosecutor asked if the jurors felt it was cost effective expending thousands of dollars having a group take time off of work to decide if someone stole a $25 CD player. Juror No. 49 responded, if its part of the system, then yes. Its worth it. Asked if the state should have a role when someone had their $5,001 CD player stolen but it was later returned, Juror No. 49 said, No. Because she got it back.

He asked whether spending tax dollars to defend the principle is important, or whether there should be monetary limits placed on whether the state should enforce a criminal action. In an attempt case with a diminimus theft value, the prosecutor was looking for jurors willing to stand by a principle, that is, to hold someone to the letter of the law. The implication was that the prosecutor was looking for jurors who could find someone guilty when a theft was committed, even if the theft resulted in no loss or a small loss. The prosecutors voir dire continued:

[Prosecutor]: Im not picking on [Juror No. 49], but if she didnt call the police, and nobody does anything about it, its like spinning in the wind. Nobody sees it. Its not helping anybody. What you are referring to as far as principle? Do you agree with that? We should defend on principle? Everybody should follow the same principle and be reporting these things or --

Juror No. 49: Im trying to understand what you mean. I think theres a certain point there has to be -- they have to change the system to where they decide what is really putting -- all the time and effort and money into it. For example, if someone shoplifted an item that was less than a dollar, do you think we should be having this? I think the person who did that . . . . There are a lot of other crimes that are committed that dont seem to be taken care of, and Im a busy person. I dont know.

[Prosecutor]: Well, thats what Im asking you then. You tell me if youre queen for the day, you would draw that line. What is important and what is not important if were not going to go just on principle, we got to have some kind of objective line. Where would you draw it?

Juror No. 49: Well, I think it depends upon how much harm has been done to a person.

[Prosecutor]: Well, lets talk about [Juror No. 49s], very expensive CD player, what do you think if she got it back -- what do you think about that? Do you think its worth your time? [] . . . []

Juror No. 49: Well, I think that the message doesnt get to a lot of people, even though we try to do it; so we just throw our hands up. Theres no consistency. Theres no consistency from state to state, county to county, and to me, thats why sometimes I dont think -- although we have a system, it doesnt work as good as it could. Its very difficult to be consistent in life.

[Prosecutor]: In an ideal world we would have unlimited resources to deal with these things; right?

Juror No. 49: Yes.

When the prosecutor inquired of Juror No. 53 whether he agreed it was worth it to prosecute someone and hold them responsible for stealing a $25 CD player, Juror No. 53 responded, For [$]25.00? No. The colloquy continued:

[Prosecutor]: Whats the limit? Where would you draw the line, to say the state shouldnt be bothering with this?

[Juror No. 53]: $5,000.

[Prosecutor]: Okay. If its under $5,000, we should deal with it some other way?

[Juror No. 53]: Maybe.

[Prosecutor]: How could you deal with it?

[Juror No. 53]: Small claims court, or something.

[Prosecutor]: What if somebody doesnt have the means to do that? Lets say that somebody got an item stolen and if its worth less than $5,000. Do you think it should be incumbent of an individual to have to take -- and hold the other person responsible of taking that property?

[Juror No. 53]: Yeah.

[Prosecutor]: Do you have a problem with the state acting on something thats less than [$]5,000?

[Juror No. 53]: Well --

[Prosecutor]: Do you think thats a waste of time?

[Juror No. 53]: I dont have a problem with it. If thats how the system works, then thats how it works. [] . . . []

[Prosecutor]: [Juror No. 53], how do you feel about that? Just having the trial for the principle of the matter? Do you think thats important enough for this country that we can afford to pay all the court staff and have to make sure this decision is just based on the principle?

[Juror No. 53]: I dont think so.

Later on, the prosecutor was discussing the difference between direct and circumstantial evidence by using the following illustration:

[Prosecutor]: Has anybody here been to China? You got direct evidence that can put all our minds to rest -- and just us one and for all, is theres [sic] a country called China? [] . . . [] . . . Juror No. 53, youre laughing at this?

Juror No. 53: No.

[Prosecutor]: What do you think this is just a silly exercise here?

Juror No. 53: No.

In his Wheeler motion defense counsel alleged that the prosecutor systematically excluded jurors on the basis of race when only exercising two peremptory challenges, both of which were to excuse Juror Nos. 53 and 49, who were two African-Americans. Defendant is African-American. Two African-Americans replaced the two excused jurors.

The trial court turned to the prosecutor and impliedly invited a response. The prosecutor responded, Its a serious charge -- its a prima [facie] case. The trial court ruled:

[T]he fact is . . . there were in fact two African-Americans excused on peremptory challenges by the People. Those were the first two peremptory challenges by the People; and the only two by both -- the People and the defense. It should be noted that one of those peremptory challenges was replaced by a black female, and the second alternate was also -- correction. The first alternate was also a black female. It would appear to me the answers that were provided by [Juror No. 53] in response to the questions in the voir dire gave him sufficient reason without having a showing under Wheeler that it was prejudicial. In regards to [Juror No. 49], it seems to me also that her answers in the voir dire questioning could rise -- or could raise issues of a proper exercise of peremptory challenge.

The Wheeler motion is denied.

Afterwards, both parties presented their cases and the jury rendered a guilty verdict on the attempted burglary and found true that a person was present in the residence during the offense. A court trial was held on the defendants two prior residential burglary convictions. It found that defendant had suffered two first degree burglary convictions on May 12, 2003, and August 1, 2003, respectively.

Defense counsel asked the trial court to appoint alternate counsel to file a motion for new trial because defendant alleged that trial counsel did not render effective assistance. The trial court appointed alternate counsel and set a date to hear that motion. After several continuances, the motion for new trial was heard. On that date, the prosecutor informed the trial court that appointed counsel did not find any grounds for a motion for new trial. The matter was continued again several times for the original defense trial counsel to file a Romero motion and the hearing was set for August 3, 2005.^[4]

At the hearing on the Romero motion, defense counsel supplied the trial court with a sentencing memorandum documenting defendants birth in a drug house, his addict parents abandonment of him and his siblings, being reared in foster homes from age three to five, and raised by his grandmother thereafter. He was a special education student suffering from ADD, repeated kindergarten, was mentally slow, and easily led by his peers. Defendants prior burglary convictions did not involve victims. When caught, he admitted his involvement and informed police where to retrieve the items.

The trial court denied defendants Romero motion. Contrary to the defendants sentencing memorandum that asked the court for leniency because of his youth^[5] and nightmarish childhood, the trial court observed that people who had a similarly poor childhood did not resort to multiple first degree burglaries as defendant had. It determined defendant was a repetitive, continuing thief.

The trial court did not find defendant was mentally slow. He had sent eight letters to the court saying that he made a mistake, but those letters did not acknowledge responsibility for the crimes. The court found that since he was a juvenile, defendant has had a continuing and escalating criminal history of first degree residential burglaries. Defendant lied about his involvement and throughout the trial persisted in his efforts to encourage others to lie for him. He exerted influence to encourage minors to participate because of their lack of exposure.^[6] Defendants commission of three residential burglaries over two years was sufficient. The trial court noted, This is exactly the kind of case that the three strikes law was designed for.

DISCUSSION

A. The trial court correctly held that the defense did not establish a prima facie case in its Wheeler motion.

Defendant contends that the trial court committed reversible error when it failed to ask the prosecutor for race neutral justifications in his peremptory challenges to Juror Nos. 49 and 53. He asserts that a prima facie case had been established because an inference of bias was raised by the statistical disparity of the prosecutors use of his only two peremptory challenges to strike African-Americans from the jury of an African-American defendant. He argues that the trial courts failure to require the prosecution to meet its burden of refuting the inference of bias was akin to lifting the Peoples burden to actually prove guilt because plausible conclusions could be assumed in retrospect and does not get at what the prosecutors real reasons for the challenges. Finally, he asserts that the prosecutor immediately conceded defense counsels observation by stating, Its a serious charge -- Its a prima facia [sic] case.

To begin with, we find defendants claim, that the prosecution conceded there was a prima facie showing of racial basis, was not supported in the record. Based on a cold record, the most we can say is that the prosecutors statement was equivocal. However, whether it was a concession or not, defendant has failed to establish a prima facie case.

Addressing defendants claim that he established a prima facie case in his Wheeler motion, the issue is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias. [Citation.] (People v. Avila (2006) 38 Cal.4th 491, 549 (Avila).)

[I]n state criminal prosecutions the right to trial by a jury drawn from a representative cross-section of the community is guaranteed equally and independently by the Sixth Amendment to the federal Constitution and by article I, section 16, of the California Constitution, and that such right is violated when a cognizable group within the community is systematically excluded from jury service. (Rubio v. Superior Court (1979) 24 Cal.3d 93, 97.) Exercising peremptory challenges because of group bias rather than for reasons specific to the challenged prospective juror violates both the California Constitution and the United States Constitution. [Citations.] (People v. Cornwell (2005) 37 Cal.4th 50, 66.) [A] single discriminatory exclusion may also violate a defendants right to a representative jury. (Avila, supra, 38 Cal.4th at p. 549)

African-American men and women have been held to be cognizable groups (People v. Young (2005) 34 Cal.4th 1149, 1173); Black women (People v. Cleveland (2004) 32 Cal.4th 704, 734); Black men (People v. Gray (2001) 87 Cal.App.4th 781, 783). (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2006 supp.) Criminal Trial, 499, pp 77-78.)

[T]he defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citation.] (Johnson v. California (2005) 545 U.S. 162, 169, fn. omitted.) Citing Johnson v. California, the California Supreme Court recently stated that a defendant makes out a prima facie case of group bias when he produces evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. [Citation.] The defendant ultimately carries the burden of persuasion to prove the existence of purposeful discrimination. [Citation.] (Avila, supra, 38 Cal.4th at p. 548.)

Here, the trial court ruled that the defense did not make a prima facie case because the jurors answers could properly be the basis of a peremptory challenge. It is correct that The court is not permitted to substitute its conjecture or surmise for the actual reasons declared by the prosecutor. [I]t does not matter that the prosecutor might have had good reasons to strike the prospective jurors. What matters is the real reason they were stricken. [Citation.] (People v. Phillips (2007) 147 Cal.App.4th 810, 818.)

However, the trial court here did not substitute its reasons for the prosecutors, but merely elaborated why the jurors disqualifications did not rise to the level of a prima facie case. (Cf. People v. Phillips, supra, 147 Cal.App.4th 810 [prosecutors excusing a juror who had numerous family members involved in criminal matters did not rise to a prima facie casethe prosecutor did not have to believe jurors representation that she could be fair to the Peoples side].) We apply the high courts standard articulated in Johnson v. California, supra,to resolve the legal question whether the record supports an inference that the prosecutor excused a juror on [an improper basis]. (Avila, supra, 38 Cal.4th at p. 554.)

We conclude that the trial court correctly found that no prima facie case was established.

First, the totality of the relevant facts surrounding the jurys selection did not give rise to an inference of discrimination. The fact that the prosecutor excused two African-American jurors does not support an inference of bias because two other African-Americans served on the juryone as a panel member, and one as an alternate. (People v. Cornwell, supra,37 Cal.4th at pp. 69-70.) [T]he exclusion of two African-American jurors and the retention of two failed to raise an inference of racial discrimination. (People v. Gray (2005) 37 Cal.4th 168, 187-188.)

A party does not offend Batson or Wheeler when it excuses prospective jurors who have shown orally or in writing, or through their conduct in court, that they personally harbor biased views. [Citation.] (People v. Stanley (2006) 39 Cal.4th 913, 940.) A juror may be excluded when a jurors views would prevent or substantially impair the performance of the jurors duties in accordance with the courts instructions and the jurors oath. [Citations.] (People v. McDermott (2002) 28 Cal.4th 946, 981-982.)

Juror No. 49 was a teacher who had her CD player stolen. She felt that it was worth expending government resources in a criminal trial irrespective of whether the stolen propertys value was a lot or a little. However, she explained that she was busy and it was not worthwhile to have a jury deliberate when stolen property had been recovered and there was no loss. Later, she asked why a case would be prosecuted if an item only cost a dollar, when there are a lot of other crimes out there. She stated her opinion that there was no consistency in the system. The prosecution could readily believe that Juror No. 49 could not be fair because in this case the victim did not suffer a loss. Juror No. 49 could be perceived to be biased against the prosecution because she felt no crime had been committed if there was no loss.

With respect to Juror No. 53, he laughed at an inappropriate moment during a discussion between direct and circumstantial evidence. He also evinced a belief that a theft loss under $5,000 should be handled in a small claims court and not a criminal court.

It is the party seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality. (People v. Stewart (2004) 33 Cal.4th 425, 445.) A peremptory challenge may be exercised to eliminate a specific bias relating to the case being tried. (People v. Martin (1998) 64 Cal.App.4th 378, 384.) Here, the record supports an inference that the prospective jurors evinced a degree of hostility toward the prosecutor. (People v. Ward (2005) 36 Cal.4th 186, 202.) Consequently, there was a race-neutral reason for their exclusion and as such, does not constitute a prima facie case of group bias.

We find that the totality of the evidence was insufficient to draw the inference that racial discrimination occurred. The trial court properly found that defendant did not meet his burden of proving a prima facie case.

B. The trial court did not abuse its discretion when it denied defendants Romero motion.

Defendant contends that the trial court abused its discretion when it denied his Romero motion because he is not the type of offender the Three Strikes law is designed for. He asserts that continuing criminality and recidivism are inherent in every three strikes case and are an insufficient basis for denying a Romero motion. He complains that the trial court inappropriately sentenced him to a life term because it was dismayed by the length of the case, defendants refusal to settle, that he failed to admit error in the face of a lengthy sentence, and had a pattern of criminal behavior. He claims that the trial court failed to make factual findings that are supported by the evidence.

Defendant also argues that he is outside of the Three Strikes scheme because he did not own the burglary tools, did not instigate the plan and was not the driver of the getaway car. He states his prior burglary convictions were nonviolent residential burglaries and he was given nominal sentences.

Pursuant to Penal Code section 1385, subdivision (a), in sentencing a defendant, a trial court may strike prior conviction allegations in the interests of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 508, 530.) In deciding whether to do so, a trial court must consider both the constitutional rights of the defendant and the interests of society. (Id. at p. 530.) A trial court must consider whether, in light of the nature and circumstances of his 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 schemes 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 (1998) 17 Cal.4th 148, 161.)

A trial courts ruling on a Romero motion is reviewed under an abuse of discretion standard of review. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.) A trial court abuses its discretion if its ruling is outside the bounds of reason. (People v. Ramirez (2006) 39 Cal.4th 398, 439.)

We conclude that the trial court did not act outside the bounds of reason in refusing to strike a prior. The trial court correctly found defendant had a continuing and escalating criminal history of first degree residential burglaries. Defendant had committed residential burglaries on May 12, 2003, August 1, 2003, and July 16, 2004. Within a span of 13 months, defendant had committed three dangerous offenses, one in which the victim was home and saw the defendant running down the hallway. On June 12, 2004, defendant was paroled on his prior residential burglary convictions. Within 34 days of his release on parole, he had committed this current residential burglary.

Contrary to defendants claims, he was not mentally slow. In fact, he was calculating. It was his modus operandi to enlist the help of minors to participate in his crimes. In this case, the defendant involved three juveniles in the commission of the offense. The girl rang the doorbell to find out if anyone was home, and if they were, she would distract them at the front door while the other three were at the back of the home breaking in. He exerted his influence to encourage the minors to participate because of their lack of exposure. He also enlisted the help of juveniles in one of the prior burglaries.

The trial court concluded that defendant lied about his involvement and encouraged others to lie for him. After her arrest, the young girl told the officers that defendant went into the backyard. However, in court she testified that defendant sat on the sidewalk in front of the house during the burglary. At the time of his arrest, defendant had scrapes on his palm which he admitted to the officer he sustained when he climbed over the fence.

In light of the nature and circumstances of his present residential burglary, his prior serious and violent residential burglaries, his recidivist background, criminal character, and poor prospects, the defendant is not deemed outside the schemes spirit. We find that the trial court quite rightly observed, This is exactly the kind of case that the three strikes law was designed for. The trial court did not abuse its discretion in denying defendants Romero motion.

C. Imposing a Wende/Anders requirement in a trial court proceeding is unnecessary.

Defendant argues that when appellate counsel on appeal finds no arguably meritorious issues, he must file a Wende/Anders brief detailing counsels reasons for failing to raise any issues on appeal. He feels that inaction at the trial level by appointed defense counsel is just as unacceptable as it is on the appellate level.

Alternate counsel was appointed to review grounds to file a motion for new trial. Because we do not know why counsel found no issues to argue in a motion for new trial, defendant asserts that appellate counsel has no record to evaluate ineffective assistance of counsel issues. He argues that we should create a new rule of trial procedure obligating trial counsel to follow the same Wende/Anders guidelines that appellate counsel currently follow to advise the court when no arguably meritorious issues can be raised. He believes that alternate trial counsel should file a Wende/Anders type brief delineating his or her investigation, research, analysis, and conclusions for a motion for new trial.

The two tiered review by counsel and the court mandated by the Wende/Anders cases applies on appeal. (People v. Kelly (2006) 40 Cal.4th 106, 119.) Defendant accurately concedes that there is no authority applying Wende/Anders requirements upon trial counsel. And with good reason. Defendant has available to him a remedy. If he cannot determine from the appellate record the reasons for alternate counsels failure in filing a motion for new trial, he can file a petition for writ of habeas corpus to request a hearing to obtain evidence outside the record to see if there was ineffective assistance of alternate counsel. (See People v. Mendoza-Tello (1997) 15 Cal.4th 264, 266-267.)

Under a traditional Strickland^[7] analysis, if the appellate record does not show why counsel acted or failed to act, unless counsel was asked for an explanation and did not provide one, or there could be no satisfactory explanation, an ineffective assistance of counsel claim must be rejected. (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) Due to the paucity of the record, we must deny defendants ineffective assistance of counsel claim. Alternate counsel did not explain why he did not file a motion for new trial and why no other motions were asserted. Barring proof that (1) counsels performance fell below the objective standard of reasonableness and (2) but for the error the result of the proceeding would have been different, we reject defendants contention that alternate trial counsel rendered ineffective assistance.

However, we observe that Mr. Waitman, alternate counsel below, was appointed by the trial court to investigate whether Mr. Congdon, defendants trial counsel, rendered ineffective assistance and submit that as a ground in a motion for new trial. Mr. Waitman was provided transcripts of all the trial proceedings. Appellate counsel has had the same opportunity as Mr. Waitman to review the exact same record and research whether Mr. Congdon rendered ineffective assistance at trial. We note that appellate counsel does not raise the issue that Mr. Congdon rendered ineffective assistance in this appeal. He only raises the issue that Mr. Waitman failed to perform his reviewing function. Since appellate counsel has had an opportunity to raise the issue of Mr. Congdons legal assistance and has failed to do so, we conclude that any purported errors have been evaluated and rejected.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ HOLLENHORST

Acting P. J.

/s/ KING

J.

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^[1]People v. Wheeler (1978) 22 Cal.3d 258, 276, 277 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson).

^[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

^[3]People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).

^[4] We are confused as to the relevancy of appellate counsel referring us to the trial courts statement that it would sentence [defendant] on the 3rd, i.e., did appellate counsel mean the trial court would sentence defendant on August 3rd or that the trial court would sentence defendant on the third strike?

^[5] Defendant wrote to the judge, Please help me as a young man. In his allocution, defendant said, Im only 21. All Im asking for is a chance in life.

^[6] Defendant wrote, The other parties involved [were given trespassing]. I was charged with attempted residential burglary.

^[7]Strickland v. Washington (1984) 466 U.S. 668.