People v. Kegler

Opinion

A jury found defendant guilty of first degree murder and robbery of Phillip Roberts (counts I and II), to be true the allegations that in the commission of the above offenses he used a revolver within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1), and inflicted great bodily injury upon Roberts (Pen. Code, § 1203.075), and that he committed the murder of Roberts while engaged in the commission of robbery (Pen. Code, § 190.2, subd. (a)(17)); it also found him guilty of the robberies of Robert Barnes and Larry Venable (counts III and IV) and to be true allegations that in the commission of those robberies defendant used a revolver. As to counts III and IV, the court sentenced defendant to state prison for a total term of eight years, to run consecutively to a sentence to state prison for a term of life without the possibility of parole plus two years for use of a firearm as to count I. A six-year sentence as to count II was stayed pursuant to Penal Code section 654. Defendant appeals from the judgment, contending the court erred in refusing two jury instructions and in excluding evidence. He also contends prosecutorial misconduct deprived him of a fair trial.

Facts

We view the evidence in the light most favorable to the judgment. At about 12:30 p.m. on November 10, Larry Venable and Robert Barnes were

Between 12:30 and 1 p.m on November 10, Clem Rattler was at work at an automotive products shop when he saw a grey Cadillac in front of the shop. Sometime before 1:30 Phillip Roberts came into the shop, displayed a large wad of money and purchased some auto parts. About two and a half miles from the automotive shop, and about two miles from the scene of the Venable and Barnes robberies, Jerome Henry was going up to his apartment about 1:30 when his neighbor, Phillip Roberts, pulled his pickup truck into the parking lot, followed by a grey Cadillac. Roberts and the driver of the Cadillac stood in back of the pickup truck talking. After Henry had entered his apartment, he heard someone say, “Give me what you got,” followed by a gunshot. Henry opened his door an inch, peeked outside, and saw the defendant push Roberts. As Roberts was falling to the ground, defendant shot Roberts again. Roberts died of gunshot wounds from two .22-caliber bullets.

On the day of the incident, Henry told police the shooter was a Black male, about five feet ten inches tall, wearing a tan cap, a tan jacket and blue jeans. The police showed a group of photographs to Henry who at first identified a photograph of Laverne Wright as looking like the shooter and then changed his mind and said that he was not the shooter. Three days later Henry identified defendant as the robber from police photographs, and the officer told him he had picked the right person. Several months later, in January 1985, an investigator from the public defender’s office spoke with Henry, who told the investigator that on a scale of one to ten, ten being certain that defendant was the robber, Henry was a “five” in his certainty of identification of defendant. At trial, Henry described the robber as a Black man with sideburns, wearing a grey jacket and a cap, and also testified that

Frank August was driving into an alley to visit a friend about 1:30 on November 10 when he heard a gunshot and shortly thereafter another shot. He saw Phillip Roberts, a friend, facing a Black man who was pointing a gun at Roberts at about a 45-degree angle to the ground. Roberts was falling to the ground. The Black man, about five feet nine inches, wearing a dark jacket and cap, got into a Cadillac and sped away past August, who wrote down the license number. Several days later, August could not identify the shooter from police photographs, but told police that if he saw the man in person he would be able to recognize him, as he got a look at the man’s profile. At the preliminary hearing, August recognized defendant as the shooter and testified then that he was certain defendant was the shooter. August was also certain at the time of trial that defendant was the shooter and, after Laverne Wright was exhibited to him, said that Wright was not the shooter.

Laverne Wright testified that on November 9 he had loaned his grey Cadillac to defendant in exchange for some cocaine. On the morning of November 10, around 10 a.m., defendant gave him more cocaine and Wright loaned him the car until the next day, November 11. Wright was home on November 10 until 3 or 4 p.m. On November 11, defendant did not return his car and several days later Wright discovered that it had been impounded. Wright admitted he had a prior felony conviction for firing into an inhabited dwelling, that he was using cocaine on November 9, and that he was five feet nine inches tall. He admitted telling his mother he had loaned his car to someone to fix the grill because his mother did not know at that time that he used cocaine.

On November 11, the police found Wright’s Cadillac abandoned and with a flat tire several blocks from defendant’s residence. Inside the glove compartment, they found a wallet containing Phillip Roberts’s driver’s license; on the floor of the passenger side was a Safeway card issued to Larry Venable, as well as numerous business cards, some bearing the name of Larry Venable. Pursuant to a search warrant for defendant’s residence, police found inside the kitchen a Tupperware jar containing two wallets with identification of Larry Venable and Robert Barnes. About $253 was found under a bed. Also found in the house were a black Raiders jacket with grey trim, the reverse side of which was mostly grey, a holster for a handgun and live rounds of ammunition; no .22-caliber ammunition was found.

Defendant did not testify. His friend, Ronald Russell, testified that on November 10, about 12:30, he drove over to defendant’s house and drove

The requested instruction was inapposite because appellant did not present sufficient evidence of third party culpability linking any particular third person to actual perpetration of the crime. (See People v. Hall (1986) 41 Cal.3d 826 , 833 [ 226 Cal.Rptr. 112 , 718 P.2d 99 ].) Prior to final argument, the court asked defense counsel why he wanted the modified version of CALJIC No. 2.91 given to the jury. Defense counsel responded: “I want it because it indicates that it’s not necessary for a defendant [to prove that another person committed the crime]. There is evidence—I mean Mr. Láveme Wright’s car was used in the commission of the murder and property was found in it, and based on those facts, we’re entitled to it.” Although defense counsel argued to the jury that Wright was the one who robbed and shot Roberts, the only evidence he referred to in this regard was that Wright and his clothing matched the physical descriptions given by witnesses to the murder and the wallet of the victim was found in his car. However, no evidence placed Wright at the scene of the murder or in possession of his car, undisputably used in the commission of the murder, at the time of the offense. Moreover, as conceded by defense counsel in final argument, the eyewitnesses’ descriptions of the suspect fit defendant, Mr. Wright, and “probably 100,000 people in Los Angeles.”

Evidence of mere motive or opportunity to commit the crime by another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (People v. Hall, supra, 41 Cal.3d at p. 833.)

We further conclude that the issue presented by the modified version of CALJIC No. 2.91 was adequately explained to the jury in other instructions. An alibi defense presents basically the same issue as is involved in mistaken identification because pursuant to CALJIC No. 4.50 on alibi, the prosecution is required to prove beyond a reasonable doubt that the defendant was present at the scene of the crime. (People v. Aho (1984) 152

B. Refusal to Instruct on Evidence Code Section 1101, Subdivision (a).

Appellant contends the court erred by refusing to instruct, upon his request, that “if you reach a guilty verdict as to one or more of the charged offenses this may not be considered by you to prove that he is a person of bad character or that he has a disposition to commit crimes and thus committed the other charged crime or crimes.” Appellant derives this instruction from Evidence Code section 1101, subdivision (a) and Williams v. Superior Court (1984) 36 Cal.3d 441 [ 204 Cal.Rptr. 700 , 683 P.2d 699 ], a case dealing with issues of severance and joinder. Williams is inapposite because appellant does not contend the counts were improperly joined or that the Venable and Barnes robberies do not bear common marks to the Roberts robbery and murder. Moreover, other courts have rejected the claim that an instruction based on Evidence Code section 1101, subdivision (a) should be given when separate offenses are tried together. (People v. Thornton (1979) 88 Cal.App.3d 795 , 804 [ 152 Cal.Rptr. 77 ]; see also People v. Jackson (1975) 45 Cal.App.3d 67 , 70 [ 119 Cal.Rptr. 71 ].) Moreover, it is unlikely that the jury in this case would use its own verdict on one count as evidence, because a verdict is clearly not evidence. The jury was instructed pursuant to CALJIC No. 1.00 that “One duty [as jurors] is to determine the facts of the case from the evidence received in the trial and not from any other source. The word ‘fact’ means something that is proved directly or circumstantially by the evidence or by agreement of counsel.” Further, the court properly instructed the jury in the language of CALJIC No. 17.02 that “Each count charges a distinct offense. The defendant may be found guilty or not guilty of any or all of the offenses charged.' Your finding as to each count must be stated in a separate verdict.”

Appellant also argues that evidence of other crimes was admitted through prosecution photographs of him which depict him with a booking number on a mugshot taken over a year before the charged crimes. No objection was made to the admission of the photographs at the time of trial,

Hearsay Statements of De More

Appellant claims the court erred in refusing to admit hearsay statements of Joyce De More, an eyewitness to the murder, who lived across the street from the crime scene and was unavailable at time of trial but who told an investigating officer shortly after the murder that she saw Roberts’s vehicle enter the parking lot, followed by a grey Cadillac; a short time later she saw an altercation between a Black male and the victim, heard some gunshots and saw the victim fall to the ground and the Cadillac leave. Appellant claims the statement as to an altercation is relevant to the special circumstances allegation and the issue of intent to kill.

He argues that De More’s statements to the officer are cloaked with sufficient indicia of trustworthiness to be admissible in the absence of oath or opportunity for cross-examination, relying on Chambers v. Mississippi (1973) 410 U.S. 284 [ 35 L.Ed.2d 297 , 93 S.Ct. 1038 ], also People v. Ramey (1976) 16 Cal.3d 263 , 269 [ 127 Cal.Rptr. 629 , 545 P.2d 1333 ], a search and seizure case.

In Chambers, defendant, on trial for murder of a policeman, sought to show that one McDonald was the killer. McDonald had earlier signed a sworn confession and confessed the killing to three friends, but at trial he presented an alibi and repudiated the sworn confession by testifying he had confessed on the promise he would not go to jail and would share in proceeds of a lawsuit Chambers would bring against the town. Chambers called McDonald at trial but was not allowed to cross-examine him as to his confession because of state court rules preventing a party from impeaching his own witness and requiring hearsay declarations against interest to be against the declarant’s pecuniary interest. As to the voucher rule, which prevented Chambers from impeaching McDonald, the high Supreme Court said: “The availability of the right to confront and to cross-examine those who give damaging testimony against the accused has never been held to depend on whether the witness was initially put on the stand by the accused or by the State. We reject the notion that a right of such substance in the criminal process may be governed by that technicality . . . .” (410 U.S. at p. 297-298 [35 L.Ed.2d. at p. 310].) As to the state’s limitation on declarations against interest, the court noted that the confessions were made and

Chambers has no application to the issue of De More’s hearsay statements. Not only was the declarant unavailable to explain those statements, but there was no indication that the statements were reliable, as they lacked the conventional indicia of reliability: they were not made under oath or other circumstances that impress the declarant with the solemnity of the statements; the declarant’s word is not subject to cross-examination; and she is not available in order that her demeanor and credibility may be assessed by the jury, (Chambers v. Mississippi, supra, 410 U.S. 284 , 298 [ 35 L.Ed.2d 297 , 311, 93 S.Ct. 1038 ].)

In the instant case, De More’s statement that she observed “an altercation between a male black and the victim,” is sufficiently conclusory and ambiguous on its face as to lead the jury to speculate as to what De More saw. No one but De More can supply the specifics of her observations, or what she meant by “altercation.” If she were available to give a specific description of what she saw, the jurors may or may not agree with her characterization of the events as an altercation. Because there is no way to explain the meaning of her statement, there is no way to evaluate its reliability. Further, as pointed out by respondent, appellant’s reliance on search and seizure cases involving citizen informants is misplaced because the exclusionary rule’s prime purpose is to deter unlawful police conduct (Burke v. Superior Court (1974) 39 Cal.App.3d 28 , 33 [ 113 Cal.Rptr. 801 ]), and a search supported by probable cause is not subject to defeasance when later events establish that the information reasonably relied upon by police was untrue. (Id., at p. 35.) On the other hand, hearsay rules and the confrontation clause are generally designed to further the accuracy of the fact-finding process. (People v. Jones (1984) 155 Cal.App.3d 653 , 663 [ 202 Cal.Rptr. 289 ].) As appellant fails to show that De More’s hearsay statements were reliable, he fails to establish that the court erred in excluding them.

Appellant contends that the application of Evidence Code section 351.1, barring evidence of polygraph results in a criminal trial in the absence of a stipulation, violated his federal and state constitutional right to compulsory process for obtaining witnesses in his favor. Prior to trial, Laverne Wright was given a polygraph test which indicated he was deceptive as to the same matters to which he testified at trial. The prosecutor refused to stipulate to admit the test results. The defense had a court-appointed expert ready to testify as to the reliability of the polygraph test administered to Wright. After hearing argument, the court, relying on Evidence Code section 351.1, refused to hold a foundational hearing relating to the admissibility of the polygraph tests results.

Evidence Code section 351.1 states: “(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding . . . unless all parties stipulate to the admission of such results, [fl] (b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.”

According to analysis by the Assembly Committee on Criminal Law and Public Safety, the above legislation, enacted in 1983 as an urgency measure, “is intended to overrule [Witherspoon v. Superior Court (1982) 133 Cal.App.3d 24 ( 183 Cal.Rptr. 615 )] and to create an exception to the truth-in-evidence section of Proposition 8 that bars the exclusion of any relevant evidence.” (Assembly Com. on Crim. Law and Pub. Safety, staff comments on Sen. Bill. No. 266 as amended Mar. 16, 1983 (1983-1984 Reg. Sess.), for hg. on June 8, 1983, p. 2.)

In granting a petition to compel the trial court to hold a pretrial evidentiary hearing as to the admissibility of a polygraph examination given to the defendant on the issues of the voluntariness of his confession and innocence of the charges of armed robbery, the Witherspoon court noted that no “statutory provision of which we are aware provides a basis for simply, in all cases, excluding the use of the results of a polygraph examination and denying the party proffering the evidence an opportunity to establish its relevancy, materiality and competency. A judicial proceeding is supposed to be a search for the truth. Any evidence which will facilitate that objective should be accepted by the courts absent a constitutional prohibition, or a specific statutory exclusion. [^[] The function of providing for the exclusion

“Every state is generally free to exercise its sovereign prerogative as to the evidence it will admit in its courts. The federal constitution, however, imposes a limited restraint upon state evidentiary rules where exculpatory evidence is excluded by arbitrary state rules. Washington v. Texas, 388 U.S. 14 , 87 S.Ct 1920 , 18 L.Ed.2d 1019 (1967). The genesis of this restriction is found in the defendant’s sixth amendment right to ‘compulsory process for obtaining witnesses in his favor.’ The Constitution imposes this limitation because the state may not deny an accused in a criminal trial the right to a fair opportunity to defend against the state’s accusations. Chambers v. Mississippi, 410 U.S. 284 , 294, 93 S.Ct. 1038 , 1045, 35 L.Ed.2d 297 (1973). However, ‘the right of a defendant to present relevant and competent evidence is not absolute and [may] “bow to accommodate other legitimate interests in the criminal trial process,” ’ Hughes v. Mathews, 576 F.2d 1250 , 1258 (7th Cir.), . . . although the competing state interests must be substantial to overcome the claims of the defendant. Our task is thus to evaluate the exculpatory significance of the proffered polygraph evidence and then to balance it against the competing state interest in the procedural rules that prevented the defendant from presenting this evidence at trial.” (McMorris v. Israel (7th Cir. 1981) 643 F.2d 458 , 460-461; fns. omitted.)

The above analysis does not involve a determination of whether the evidentiary rule in question is facially unconstitutional, as neither Chambers nor Washington held the evidentiary rules in question facially unconstitutional. (Mc Morris v. Israel, supra, 643 F.2d at p. 461, fn. 5.) Rather, our task is limited to an examination as to whether “the exclusion of the polygraph evidence under the particular circumstances of the instant case deprived this defendant of his constitutional rights.” (Ibid.)

A. Exculpatory Significance of Polygraph Evidence

Appellant argues that “[t]here was ... a reasonable possibility that Wright—not defendant—was the slayer. Admission of reliable polygraph evidence that Wright lied would have strengthened that possibility and increased defendant’s chances of acquittal.” The fallacy of this argument is that even expert opinion evidence that Wright was lying goes only to the issue of Wright’s credibility and cannot in itself provide affirmative evidence that Wright was the killer. Disbelief of a witness does not establish that the contrary is true, only that the witness is not credible. (People v. Woodberry (1970) 10 Cal.App.3d 695 , 704 [ 89 Cal.Rptr. 330 ].) Here, Wright’s testimony was significant primarily because it explained appel

The experience of the federal District Court for the Central District of California in one case similarly led that court to conclude that the administrative burden on the court outweighed the probative value of the test. (United States v. Urquidez (C.D.Cal. 1973) 356 F.Supp. 1363 , 1367.) After spending three full days hearing testimony of experts concerning the polygraph instrument, the technique of administering the test, the validity of the test administered to the defendant, and the meaning of the results, and after having read numerous articles about polygraphy and transcripts of testimony of experts in another case, the court concluded that “although the inquiry was far from complete, the experience of this case has amply shown that, as of now, the validity of a polygraph test is dependent upon a large number of variable factors, many of which would be very difficult, and

A few states have similarly excluded polygraph evidence in whole or in part because its burden on the administration of justice was deemed to outweigh its probative value. (State v. Grier (1983) 307 N.C. 628 [ 300 S.E.2d 351 , 359-360], also holding that polygraph evidence is inherently unreliable; State v. Catanese (La. 1979) 368 So.2d 975 , 981.) In Michigan, polygraph evidence is not admissible because not generally accepted as reliable by the scientific community. (People v. Williams (1983) 123 Mich.App. 752 [ 333 N.W.2d 577 , 580].)

Some states focus on the risk of confusion and prejudice to the jury from polygraph evidence, and exclude it because it “impinges upon the integrity of pur judicial system.” (People v. Baynes (1981) 88 Ill.2d 225 [ 430 N.E.2d 1070 , 1079]; see also State v. Conner, supra, 241 N.W.2d 447 , 459.) The Supreme Court of North Carolina articulated one problem relating to polygraph evidence before a jury: “[W]e are acutely aware of the possibility that the criminal proceeding may degenerate into a trial of the polygraph machine. [Citations.] The introduction and rebuttal of polygraph evidence, if all the possibilities for error in the polygraphic process were deeply explored, could divert the jury’s attention from the question of the defendant’s guilt or innocence to a judgment of the validity and limitations of the polygraph.” (State v. Grier, supra, 300 S.E.2d at pp. 359-360.) The Eighth Circuit Court of Appeals suggested another problem: “When polygraph evidence is offered in evidence at trial, it is likely to be shrouded with an aura of near infallibility, akin to the ancient oracle of Delphi. During the course of laying the evidentiary foundation at trial, the polygraphist will present his own assessment of the test’s reliability which will generally be well in excess of 90 percent. . . . Based upon the presentment of this particular form of scientific evidence, present-day jurors, despite their sophistication and increased educational levels and intellectual capacities, are still likely to give significant, if not conclusive, weight to a polygraphist’s opinion as to whether the defendant is being truthful or deceitful in his response to a question bearing on a dispositive issue in a criminal case. To the extent that the polygraph results are accepted as unimpeachable or conclusive by jurors, despite cautionary instructions by the trial judge, the juror’s traditional responsibility to collectively ascertain the facts and adjudge guilt or innocence is preempted.” (United States v. Alexander (8th Cir. 1975) 526 F.2d 161 , 168-169.) A similar justification has been advanced

Materials considered by the Legislature in enacting Evidence Code section 351.1 reveal that all of the above concerns were considered by the Legislature. A digest of the bill by the Senate Republican Caucus noted that under Witherspoon v. Superior Court, supra, 133 Cal.App.3d 24 , the courts must decide the issue of admissibility on a case-by-case basis, which will “substantially increase trial time by requiring courts to litigate collateral issues regarding the reliability of the particular test and qualifications of the specific polygraph examiner in every case,” and that “opinions vary widely on the reliability of polygraph evidence.” (Sen. Republican Caucus, Dig. of Sen. Bill No. 266, dated Mar. 16, 1983, pp. 1-2.) Staff comments on the bill prepared by the Assembly Committee on Criminal Law and Public Safety noted that a number of variables contributed to reliability problems with the polygraph, including the lack of standardization in the administration of the tests, the lack of standards for licensing examiners and the lack of a means of testing for accuracy, other than confessions, which may themselves be unreliable. The committee staff also stated that “proponents express concern that a ‘machine’ will usurp the role of the jury and that jurors will assign too much credence to the results of a polygraph examination.” (Assem. Com. on Crim. Law and Pub. Safety, staff comments on Sen. Bill No. 266 as amended Mar. 16, 1983 (1983-1984 Reg. Sess.) for hg. on June 8, 1983, pp. 2-4.)

Given the experience of other jurisdictions with polygraph evidence, particularly that of Wisconsin, we cannot say that the concerns of the California Legislature are not legitimate or compelling. The statute clearly rests on considerations of reliability and integrity of the criminal justice system. Further, the policy reasons for excluding polygraph evidence in the present case are more compelling than the evidentiary rules relied upon by the state courts in Chambers v. Mississippi, supra, 410 U.S. 284 [ 35 L.Ed.2d 297 , 93 S.Ct. 1938 ], Because these concerns for reliability and fairness outweigh the relatively weak exculpatory significance of the proffered evidence in the instant case, we conclude that the application of Evidence Code section 351.1 did not deny appellant due process or violate his state and federal right to compulsory process.

We find appellant’s other challenges to Evidence Code section 351.1 also to be without merit. Because it was enacted by a two-thirds vote (see Sen. Final History, 1983-1984 Sess., Sen. Bill No. 266, p. 185; Stats 1983, ch. 202), that section does not violate article 1, section 28, subdivision (d) of the California Constitution which provides in pertinent part that “Except as provided by statute hereafter enacted by a two-thirds vote of the member

Without merit are appellant’s claims that the stipulation provision of the statute violates federal and state constitutional principles of equal protection and that it gives the prosecution a complete and arbitrary veto power over the evidence, thus usurping judicial authority in violation of the doctrine of separation of powers. As explained above, polygraph evidence is not otherwise admissible. The parties, however, may by stipulation, waive their evidentiary objections and right to cross-examine or impeach the polygrapher and agree to admit such evidence. Assuming the stipulation provision theoretically may involve disparate treatment of defendants, the Legislature could have reasonably acted to permit such otherwise inadmissible evidence only in those cases where there would be no burden on the trial court because of a lengthy, contested foundational hearing. (See, e.g., United States v. Urquidez, supra, 356 F.Supp. 1363 , 1365-1367.)

Nor does the stipulation provision of the statute result in the usurpation of judicial authority: “In our adversary system, evidence received without objection is . in the case for what it is worth. This is no less true when an objection is stipulated away than when it is otherwise given up. Contrary to defendant’s argument, the issue of admissibility of polygraph evidence is no more in the hands of the adversary than is the issue of admissibility of any evidence to which an adversary may lodge a valid objection.” (State v. Conner, supra, 241 N.W.2d 447 , 459; accord, Robinson v. Wilson (1974) 44 Cal.App.3d 92 , 106-107 [ 118 Cal.Rptr. 569 ].)

We conclude that Evidence Code section 351.1 was properly applied to the circumstances of the instant case.

Prosecutorial Misconduct

Appellant assigns as prejudicial misconduct the following conduct of the prosecutor: (1) his reference to “probation” during voir dire of the jury panel and during closing argument; (2) his suggestion in closing argument that the prosecution possessed insider information, not presented to the jury, which eliminated Wright as a suspect; (3) his argument to the jury improperly injected his personal opinion of the evidence and credibility of the witnesses, matters not introduced in evidence.

As to the first incident of purported misconduct, appellant claims that the prosecutor’s references to probation constituted a comment on punishment suggesting a lenient disposition which had the effect of dimin

Finally, appellant claims it was misconduct for the prosecutor to tell the prospective jurors in voir dire that “I’m convinced at some point in time you’ll be convinced beyond a reasonable doubt. . . .” and to tell them in closing argument that he had been a prosecutor for 11 years and that when witnesses lie they do not fool the district attorney, the defense attorney, or the judge, and that it is common in a criminal trial for witnesses to lie. Appellant argues that the district attorney’s courtroom experience was not introduced into evidence and it was improper to argue personal opinion of guilt. In their contexts, however, the prosecutor’s comments were simply commonsense inferences from the conflicting evidence and not misconduct. If misconduct, not only did defense counsel fail to assign it as such, but it was not so unredeemable that an admonition would not have cured it.

Disposition

The judgment is affirmed.

Thompson, J., and Johnson, J., concurred.

Appellant’s petition for review by the Supreme Court was denied March 3, 1988.