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OPINION
Following a contested jurisdictional hearing, Garth D., a 16-year-old minor, was found to be a person specified in section 602 of Welfare and Institutions Code by virtue of the following offenses: Second degree murder; willfully permitting the unjustifiable suffering of a child; and willfully inflicting cruel and inhuman corporal punishment on a child. He was adjudged a ward of the court and committed to the Youth Authority. This is an appeal from the judgment.
The central issue on this appeal concerns the admissibility of admissions made by appellant to a probation officer. Appellant contends that the admissions were the product of improper coercive influence exerted upon him by the juvenile hall staff members and a police officer and therefore should have been excluded as involuntary.
Appellant had been living with Ruth L., her three-year-old daughter Michelle and her two-year-old son David for approximately three months. On September 19, 1974, another couple (Martha Hayes and David Garcia) spent the night at Ruth's apartment. The next afternoon at about 2:30 Ruth, Miss Hayes and Mr. Garcia left for the store in appellant's car while appellant remained in the house with the children. He was watching television in the living room and the children were in the bedroom taking a nap.
About 15 minutes later Ruth returned to the apartment. Appellant was in the living room watching television but Ruth found Michelle in the bedroom vomiting on David. Ruth told Michelle to go to the bathroom and took David there to clean him. While she was cleaning David, Michelle (who had been sitting on the toilet) fell in so Ruth called appellant to help her up. After appellant lifted Michelle out, Ruth noticed that Michelle's arm appeared to be broken. She convinced appellant that Michelle should be taken to a doctor.
When Miss Hayes and Mr. Garcia returned shortly with appellant's car, they observed two-year-old David in the bedroom. His appearance had changed from the time they had left the apartment earlier that afternoon. He was lying limply on his pillow with half-closed eyes; he was pale; his mouth was bluish-white; and he was moaning. Miss Hayes asked what was wrong and why they were not taking him to the hospital, too. Ruth and appellant replied that "he'd be all right" and left for the hospital with Michelle.
While Ruth was in the hospital X-ray room, appellant left stating he was going out to buy cigarettes. Instead of returning to the hospital, he went directly back to the apartment. Upon his arrival, Miss Hayes asked defendant to look at David. When he did so, appellant started crying, told Miss Hayes to call an ambulance and attempted to revive David by pushing on his chest and administering mouth-to-mouth resuscitation. The child was taken to the hospital by ambulance but he was dead on arrival.
Soon after David was placed in the ambulance appellant spoke with Police Officer Glenzer who had been on routine patrol but had stopped when he saw the ambulance in front of the apartment building. Appellant told the officer that both children had become sick and vomited after having eaten cereal and milk for breakfast. He said the cereal was bad and gave the officer the box from which it had been dispensed.
The autopsy surgeon testified that the cause of the child's death was blunt trauma to the abdomen; the child had suffered numerous internal injuries in his abdominal cavity, all of which could have been inflicted by a kick to the abdomen; in order to inflict such injuries, a person of appellant's size in stocking feet would have had to kick with as much force as is used in punting a football or kicking a field goal.
On October 1, 1974, approximately two weeks after the child's death, Officer Hilder arrested appellant and he was booked and detained at juvenile hall. On October 3, Goldie Hall, a probation officer, visited appellant to inform him of the charges, to advise him of his legal rights, and to permit him to make a phone call to his mother. The probation officer was permitted to testify that when she told appellant the charge would be murder he explained that the injury to the child had been an accident; the boy was jumping in bed instead of taking a nap; he attempted to kick the child in the buttocks but the child suddenly turned around, causing the kick to land in his abdomen. At the hearing, appellant testified to essentially the same version of the incident.
Appellant contends the admission into evidence of his statements to the probation officer was prejudicial error. For reasons to be stated, we have concluded that the contention is meritorious and compels reversal of the judgment.
The court held extensive hearings on two related evidentiary questions: The admissibility (1) of statements made to Officer Hilder and (2) of the subsequent statements made to Probation Officer Hall. In the course of those hearings, the following evidence was adduced:
Officer Hilder arrested appellant sometime in the afternoon of October 1, 1974. Before taking him to juvenile hall, the officer prevailed upon appellant to agree to submit to a polygraph examination the next day. The officer brought appellant to juvenile hall about 5:40 p.m. and that night went to appellant's mother's house, told her that her son had consented to take a polygraph test and secured her written consent thereto.
During the booking process, appellant refused to answer when asked his name and that of his probation officer. He was taken to a holding cell by juvenile hall counselors, held there for 15 or 20 minutes and returned to the booking office. When he again failed to answer questions, he was returned to the holding cell where he was told to lay his shoes and jacket on the floor in front of the cell. At that moment, upon overhearing one counselor comment to another concerning his uncooperative attitude, appellant said: "Kiss my ass." One of the counselors replied: "I don't have to take that from an accused child killer and don't talk to me like that again." According to the counselor, he then cuffed appellant across the left ear with his open right hand. Appellant was then ordered to remove all of his clothing and was held in the empty cell, naked, from
6:30 p.m. to 9:30 p.m. when a counselor brought pajamas, bedding and a mattress. The counselor noticed spots of fresh blood on the floor at the place where appellant had been sitting. All he could elicit from appellant was the statement: "That black bastard hit me." The counselor told appellant: "If you cooperate things will go much nicer here for both of us." The following morning appellant's nose was slightly swollen and there was dried blood on it.
About 8:30 the following morning (October 2) Deputy Public Defender John Howard, who had previously been appointed to represent appellant on a pending traffic matter, visited him at juvenile hall. Howard told appellant he was his lawyer and needed to discuss the incident resulting in the child's death. When appellant informed him that arrangements were being made for a polygraph examination that day, Howard strongly advised him not to take the test and not to speak with anyone about the offense. The public defender told Probation Officer Goldie Hall who had been assigned to the case that while he did not object to her talking to appellant concerning the social data needed in the preparation of a petition, she should not ask him about the offense. Ms. Hall agreed. Also, in the presence of the assistant superintendent of juvenile hall, Howard requested the assistant chief probation officer (Mr. Kuiper) not to talk to appellant about the events culminating in his arrest. Deputy Public Defender Howard visited appellant three times that morning.
About 11:45 a.m. that day Officer Hilder came to juvenile hall and asked to see appellant. He talked to Ms. Hall who told him that Deputy Public Defender Howard was representing appellant and had advised him not to take the polygraph test. At Officer Hilder's insistence, however, Ms. Hall permitted him to talk to appellant. Appellant handed Mr. Howard's business card to Hilder and told him that the attorney had advised him not "to talk to you" and not to consent to the polygraph test. Officer Hilder responded that the polygraph was most often used to exculpate and that while appellant's answers to questions could be used against him, the test results could not. Appellant repeatedly asked whether he would be released if he took the test. Hilder responded that if the "machine" showed he was not lying when he denied causing the death of the victim there would be no reason to detain him. Ms. Hall, who was with Hilder in appellant's cell, confirmed that there would be no reason to detain appellant if the investigating officer found the evidence insufficient. Appellant then agreed to submit to the examination. Thereafter, Hilder, Ms. Hall, Mr. Kuiper and the assistant
superintendent of the juvenile hall conferred and agreed that appellant could be released to Officer Hilder that afternoon for the polygraph examination.
At approximately 1 p.m. Officer Hilder drove appellant to Redlands for the polygraph test. They remained in Redlands approximately three and one-half hours. Hilder then drove appellant back to San Bernardino but instead of returning him to juvenile hall, took him to an interview room at the police station and continued the discussion of the offense. In the course of that conversation Hilder told appellant that some homicides were excusable and read him Penal Code section 195
defining "excusable homicide."1 Appellant then made a statement concerning the circumstances surrounding the child's death.
The officer admitted that he discussed the offense with appellant during most of the approximately five and one-half hours he was with him that afternoon. Officer Hilder did not return appellant to juvenile hall until around 6:30 p.m. Appellant had declined breakfast and lunch that day, but upon his return that evening he was told the kitchen was closed when he asked about a meal.
The following morning Ms. Hall visited appellant for the purpose of informing him of the nature of the charges to be filed in the petition and to permit appellant to make a phone call to his mother. (Appellant had not previously been advised of his right to use the telephone.) When Ms. Hall said she wished to speak with him, appellant said: "What is there to talk about? I have already told him I did it." As Ms. Hall was leading appellant from his detention cell to an interview room, she told appellant she did not want to talk about the offense but he repeated the statement. At the interview room, she explained her role as a probation officer, pointing out that she did not become involved until after the truth of the charge had been determined by the court. Appellant asked: "Is this going to be used against me?" Ms. Hall said: "No" and proceeded to recite the Miranda
warnings. Ms. Hall testified she based her assurance that appellant's statements would not be used against him on the fact
that her duty was to gather data for dispositional hearings and she had never before been called to testify at a jurisdictional hearing concerning her discussions with juveniles about the offenses involved. At Ms. Hall's suggestion, appellant checked the box on the printed Miranda form to indicate he wished to have an attorney appointed to represent him. Ms. Hall then told appellant that a petition would be filed and that the charge would be murder. Thereupon, appellant said that Officer Hilder had read him the Penal Code section and had told him that some homicides were excusable. Appellant went on to explain that the child's death was an accident; he had meant to kick the child in the buttocks but the kick inadvertently landed in David's abdomen when he unexpectedly whirled around.
Appellant testified that when asked the name of his probation officer during the booking, he replied he did not have one and when asked again, said he did not want to talk to anyone. He testified that when he was taken to the holding cell he was struck on the nose. Concerning the statements to Ms. Hall, appellant testified that Mr. Russell, the intake officer, was present in the interview room and the reason he asked Ms. Hall if his statements would be used against him was because he did not want to talk in Russell's presence.
The judge sustained objections to the introduction of appellant's statements to Officer Hilder because the officer, despite his knowledge that appellant was represented by the public defender, failed to notify that office before talking to appellant. However, the judge concluded that the statements made to Ms. Hall were free and voluntary, not the result of interrogation and not tainted by the prior illegal police conduct and the mistreatment of appellant by juvenile hall counselors.
(1a) Appellant contends that despite the trial court's determination, the uncontradicted evidence viewed in light of the totality of the circumstances reveals undue physical and psychological coercion rendering his statements to Ms. Hall involuntary.2 We agree.
(2) While the finding of the juvenile court judge that the statements were voluntary may not be set aside unless "palpably erroneous" (People v. Lyons, 18 Cal.App.3d 760, 775
[96 Cal.Rptr. 76]; People v. Daniels, 1 Cal.App.3d 367, 374 [81 Cal.Rptr. 675]), it is our obligation as a reviewing court "to examine the uncontradicted facts in order to determine independently whether the statements were voluntary." (People v. Haydel, 12 Cal.3d 190, 198
[115 Cal.Rptr. 394, 524 P.2d 866] [quoting from People v.Underwood, 61 Cal.2d 113, 121 [37 Cal.Rptr. 313,389 P.2d 937]]; People v. Sanchez, 70 Cal.2d 562, 571 [75 Cal.Rptr. 642,451 P.2d 74]; People v. Daniels, supra, at p. 374.) That determination must be made in light of the whole record and must take into account all of the circumstances surrounding the admissions. (Greenwald v. Wisconsin, 390 U.S. 519, 521
[20 L.Ed.2d 77, 79-80, 88 S.Ct. 1152]; People v. Sanchez, supra,
at p. 572; People v. Daniels, supra, at p. 374.) In exercising this function, a reviewing court must be mindful of the principle that the prosecution bears the burden of showing that the statement was voluntarily given without previous inducement, intimidation, or threat. (People v. Sanchez,supra, at p. 572; People v. Berve, 51 Cal.2d 286, 291
[332 P.2d 97].) If an individual's will was overborne or if his admissions were not the product of a rational intellect and a free will, his admissions must be deemed inadmissible because coerced; and these standards are applicable whether an accused's statement is the product of physical intimidation or psychological pressure. (Townsend v. Sain, 372 U.S. 293, 307
[9 L.Ed.2d 770, 782, 83 S.Ct. 745]; Reck v. Pate,367 U.S. 433, 440 [6 L.Ed.2d 948, 953, 81 S.Ct. 1541]; Blackburn v.Alabama, 361 U.S. 199, 208 [4 L.Ed.2d 242, 249, 80 S.Ct. 274];People v. Sanchez, supra, at p. 572.)
(1b) Significant factors bearing upon the voluntariness of appellant's admissions in the case at bench include his age, the amount of physical abuse and psychological pressure to which he was subjected, denial of his right to counsel during police interrogation, his insulation from family contacts, and the fact that the admissions were made to a probation officer. (Haley v.Ohio, supra, 332 U.S. 596, 599-600 [92 L.Ed. 224, 228-229];Clewis v. Texas, 386 U.S. 707, 711 [18 L.Ed.2d 423, 427-428,87 S.Ct. 1338]; Fikes v. Alabama, 352 U.S. 191, 197
[1 L.Ed.2d 246, 250-251, 77 S.Ct. 281]; People v. Sanchez,supra, 70 Cal.2d 567, 573; In re Paul T., 15 Cal.App.3d 886,894 [93 Cal.Rptr. 510].)
The following facts were uncontradicted:
Appellant was a 16-year-old minor. During the booking process he was struck, stripped and placed in a bare cement holding cell for approximately three hours by probation department counselors and was later told that things would be "nicer" if he cooperated. The morning
following his confinement he was visited three times by a deputy public defender who informed him he was his attorney and advised him not to take the polygraph test and not to talk to anyone about the offense. With full knowledge of those facts, Officer Hilder, with the cooperation of probation officers, talked to appellant without informing his counsel and induced him to agree to submit to a polygraph test with assurances that it may lead to appellant's early release. Officer Hilder subjected him to the test and "discussed" the case with him over a period of about five and one-half hours. Instead of returning him to the juvenile hall on completion of the test, the officer took appellant to the police station where he continued his "discussions" with appellant about the offense. He told appellant some homicides were excusable and read him the Penal Code section; this ultimately elicited statements from appellant concerning the offense.
Appellant had eaten nothing during his second day of confinement. When Officer Hilder returned appellant to juvenile hall after the polygraph test, he was told the kitchen was closed for that evening. Also although Welfare and Institutions Code section 6273 confers upon a minor the right to make two telephone calls within three hours of the commencement of confinement, appellant was not told of this right until the third day of his confinement. In addition, his mother was not permitted to communicate with him by telephone.
The morning following his statements to Officer Hilder, Probation Officer Hall went to appellant's cell to inform him that a petition would be filed, to explain the charges, and to permit him to call his mother. When first approached by the probation officer, appellant twice insisted there was nothing to talk about since he had already told Officer Hilder he "did it." The probation officer repeatedly told appellant she did not wish to discuss the offense. However, in response to appellant's inquiry whether statements he made would be used against him, she assured him they would not. Ms. Hall explained to appellant her role as a probation officer and told him she did not become involved until after the charges had been tried by the court. Only when she told him that the charge
would be murder did appellant exclaim that Officer Hilder had read him the Penal Code section and told him some homicides are excusable; appellant then proceeded to give his explanation of how David's fatal injuries occurred.
While no single one of the foregoing circumstances in isolation may have rendered the admissions to the probation officer involuntary, their cumulative effect compels the conclusion that the statements were the direct product of the coercive and illegal conduct of the police, probation officers and counselors. The fact that appellant is a minor demands emphasis. A 16-year-old boy cannot be judged by the exacting standards of maturity. Special care must be used in scrutinizing the record when a minor is involved. (Haley v. Ohio, supra,332 U.S. at p. 599 [92 L.Ed. at p. 228].) While there is no evidence that the physical abuse inflicted by the juvenile hall counselors constituted a calculated attempt to elicit statements from appellant, the striking and stripping incident may not be disregarded, particularly when he was told that things would be "nicer" if he cooperated. It would require little imagination for a 16-year-old to conclude that the penalty for being "uncooperative" would be further slapping and stripping. The trial judge was justifiably appalled by the mistreatment of appellant and during the hearing indicated his intention to order an investigation of any such practices at juvenile hall.
Although the statements made to Officer Hilder at the police station were correctly excluded on the ground that they were obtained during an interrogation conducted in violation of appellant's right to counsel (Tidwell v. Superior Court,17 Cal.App.3d 780, 789-790 [95 Cal.Rptr. 213]; People v. Isby,267 Cal.App.2d 484, 494-495 [73 Cal.Rptr. 294]), they were also inadmissible because they were involuntary. The officer's representations that polygraph examinations are most often used to exculpate and that appellant may be released after taking such a test were improper attempts to persuade him to speak about the offense. (3) When a defendant is led to believe that he may reasonably expect more lenient treatment by making a statement, the statement so induced is deemed involuntary. (People v.Hill, 66 Cal.2d 536, 549 [58 Cal.Rptr. 340, 426 P.2d 908];People v. Russell, 259 Cal.App.2d 637, 646 [66 Cal.Rptr. 594] .)
The statements to Officer Hilder at the police station were made after appellant had been induced to take the polygraph test on the assurance it might exonerate him, had been subjected to continuous "discussion" about the offense for more than five hours, and had been read the Penal
Code section on excusable homicide, all in the absence of his counsel. Interrogation by the police without prior notification of an accused's appointed attorney is an unconstitutional denial of the right to counsel. (Tidwell v. Superior Court, supra,17 Cal.App.3d 780, 789-790; People v. Isby, supra,267 Cal.App.2d 484, 494-495.) The United States Supreme Court has cautioned that even when counsel "was not present for somepermissible reason when an admission [of a juvenile] was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair." [Italics added.] (In re Gault, supra, 387 U.S. 1, 55
[18 L.Ed.2d 527, 561]; italics supplied.) In the instant case not only was appellant's counsel absent for an impermissible
reason, numerous other coercive influences were exerted upon appellant. The knowing and willful violation of appellant's right to counsel by the probation officers and Officer Hilder evoked from the trial judge the comment: "I have not felt such a sense of outrage since I have been on the bench." We share that feeling. The conclusion is inescapable that appellant's statements to Officer Hilder at the police station were involuntary.
(4) It has been a settled rule in this state for more than 100 years that when an accused makes a confession or other incriminating statement as a result of threats, violence or other improper influences and shortly thereafter again incriminates himself under circumstances not manifestly coercive "`there is a presumption that the influence of the prior improper treatment continues to operate on the mind of the defendant and that the subsequent confession is the result of the same influence which rendered the prior confession inadmissible, and the burden is upon the prosecution to clearly establish the contrary.'" (People v. Sanchez, supra, 70 Cal.2d at p. 574 [quotingPeople v. Jones, 24 Cal.2d 601, at p. 609 (150 P.2d 801)]. See People v. Brommel, 56 Cal.2d 629, 634 [15 Cal.Rptr. 909,364 P.2d 845]; People v. Loper, 159 Cal. 6, 14-15
[112 P. 720].) As Sanchez noted, the rule was first expounded in this state in People v. Johnson (1871) 41 Cal. 452, 454. In the latter case a period of two days had elapsed between an involuntary confession induced by promises of leniency and the subsequent confession introduced at trial. The court held that the second confession should have been excluded, saying: "The law presumes the subsequent confession to have been made and influenced by the same hopes and fears as the first, and this presumption continues until it be affirmatively established by the prosecution that the influences under which the original confession was made had ceased to operate before the subsequent confession was
made." (41 Cal. at p. 455.) In People v. Jones, supra,24 Cal.2d 601, a second confession made under no apparent coercive influences three days after a forced confession was held to be inadmissible.
(1c) The facts at bench reveal no break in the chain of events between the involuntary admissions to Officer Hilder and the statements to Probation Officer Hall the following morning. As we view the entire record, the prosecution failed to establish affirmatively that the latter admissions were not the result of the same influences which induced the involuntary admissions to Officer Hilder. (See Clewis v. Texas, supra,386 U.S. at p. 710 [18 L.Ed.2d at pp. 426-427]; People v. Johnson, supra,41 Cal. 452, 454-455.)
The admissions to Ms. Hall followed mere hours after the statements to Officer Hilder. Appellant had no contact with his counsel, friend, or members of his family between the statements illegally induced by Officer Hilder and the interview with the probation officer. The fact that the statements were not the immediate result of an interrogation does not compel the conclusion that they were voluntary. The admissions in which appellant gave his version of the occurrence were triggered by Ms. Hall's statement that a petition would be filed and the charge would be murder. Appellant expressed surprise that the charge would be murder after having been assured by Officer Hilder that some homicides were excusable. Manifestly the same "hopes and fears" which induced him to make the statements to Officer Hilder continued to operate on appellant's mind. Furthermore, the fact that appellant had made the prior statements was itself a coercive influence since he may well have concluded he could not make his case worse than he had already made it. (People v. Sanchez, supra, 70 Cal.2d at p. 575;People v. Jones, supra, 24 Cal.2d at p. 610.)
Balanced against the foregoing factors, the Miranda warnings given by Ms. Hall do not constitute a significant break in the chain of events. This is especially true where, as here, the warnings had been immediately preceded by appellant's inquiry whether his statements would be used against him and the probation officer's assurances they would not. While the trial judge apparently found that appellant was referring to statements he had already made as distinguished from statements he maymake during the interview, the probation officer's testimony on that issue was equivocal to say the least. She admitted on cross-examination that she did not know what was in appellant's mind and that her conclusion that he was referring to statementshe had made was "an assumption on
my part." She stated that she explained her role as a probation officer and told appellant she did not become involved until after the court determined whether the allegations against him were true. She candidly testified that based on her experience as a probation officer it was her belief that anything said by a juvenile when interviewed by a probation officer would not be admissible. She said that juveniles frequently make statements concerning the offenses during interviews with her but that she had never previously been called upon to testify to such statements at a jurisdictional hearing.
Ms. Hall's confusion concerning the admissibility of statements made by a juvenile when interviewed by a probation officer is understandable. Such interviews are infected with the inherent danger that the minor, being cognizant of the role of the probation officer in juvenile court proceedings, may feel compelled to speak about the offense in order to avoid being thought uncooperative and hence unfit for favorable dispositional recommendation. (In re Paul T., supra, 15 Cal.App.3d 886, 894.)(5) Recognizing this difficulty, our high court has enunciated the rule that admissions made to a probation officer in the hope candor will result in a favorable report to the court are involuntary. (People v. Harrington, 2 Cal.3d 991, 999
[88 Cal.Rptr. 161, 471 P.2d 961].) Undoubtedly, Ms. Hall's belief was also based upon the rule articulated in In re Gladys R.,1 Cal.3d 855, 859-861 [83 Cal.Rptr. 671, 464 P.2d 127], that it is prejudicial error for a court to review a probation officer's social study report prior to a contested jurisdictional hearing.4 We are satisfied that in the circumstances of the present case the Miranda warnings did not overcome the presumption that the statements made to Ms. Hall were involuntary.
For like reasons, Ms. Hall's remonstrances to appellant that she was "not concerned" with and "did not want to talk about" the offenses do not rebut the presumption that appellant's statements to her were the result of the same improper influences which rendered his statements to Officer Hilder involuntary. Manifestly, nothing Ms. Hall said erased the psychological effect of the earlier suggestion implanted in appellant's mind by Officer Hilder that his own interests would be best served by explaining how the offense occurred. Nor may we assume that appellant's
life style or his past undisclosed brushes with the law rendered him insensitive to the improper coercive influences exerted upon him. Although appellant may not have led a blameless life, constitutional safeguards extend equally to sinners as well as to saints.
A conscientious discharge of our obligation to examine the uncontradicted evidence in the light of the totality of the circumstances and to determine independently the issue of voluntariness compels the conclusion that the admissions made to the probation officer were involuntary. We recognize that our decision is based on the printed record of the proceedings below while the trial judge had the opportunity to see and hear the witnesses. However, we have not attempted to reassess the credibility of the witnesses; our determination is based on our appraisal of the uncontradicted evidence.
(6) Inasmuch as the statements did not amount to a full confession, their erroneous admission into evidence is subject to the Chapman rule of harmless error. (People v. MacPherson,2 Cal.3d 109, 115 [84 Cal.Rptr. 129, 465 P.2d 17]; People v.Powell, 67 Cal.2d 32, 52 [59 Cal.Rptr. 817, 429 P.2d 137];Chapman v. California, 386 U.S. 18, 24 [17 L.Ed.2d 705,710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065].) However, we cannot say that the error here was harmless beyond a reasonable doubt. The admissions constituted the only direct evidence that appellant had kicked the child. The judgment must therefore be reversed.
Since we have determined that the judgment must be reversed due to improper admission of appellant's extrajudicial statements, it is not necessary to discuss appellant's other contentions.
Judgment is reversed.
Hilliard, J.,* concurred.