Lead Opinion
Despite a grant of immunity, defendant and appellant Starletta Partee refused to testify against four individuals charged with a gang-related murder.
Defendant raises several arguments on appeal: the prosecution overreached when it charged her as an accessory for refusing to testify, she cannot be guilty of being an accessory because her silence-refusing to testify-is not an affirmative act, her single act of refusing to testify does not support four felony convictions, the trial court failed to instruct on the elements of contempt, her statements to a detective were admitted into evidence in violation of her Fifth Amendment rights, and her trial counsel was ineffective for failing to raise the Fifth Amendment claim. We find no grounds for reversal and affirm the judgment.
FACTUAL BACKGROUND
On the day of a 2006 gang-related murder, City of Los Angeles police officers found the car they believed the perpetrators drove and then abandoned. The homicide detective, John Skaggs, learned the car had been rented by defendant and that she had contacted the rental car office to report it as stolen. The rental car representative told defendant to file a report with the Hawthorne Police Department. Meanwhile, Detective Skaggs contacted the Hawthorne Police Department and asked to be notified when defendant arrived. Officers from the Los Angeles Police Department met defendant there and drove her back to Detective Skaggs's office.
Detective Skaggs surreptitiously recorded the interview with defendant. After establishing the rental car had been involved in a shooting, the detective told defendant, "Even though I don't have somebody that says that a young black female shot a gun out of a car that hurt somebody, any participation you have and any lies to me, in regards to this investigation, is a crime." The interview then focused on what defendant knew about the involvement of her brother Nehemiah Robinson, her cousin Toyrion Green, and brothers Bryant and Byron Clark, lifelong friends she considered "family," in the shooting. Defendant told the detective Robinson borrowed the rental car the evening before to visit a girl. That morning, one of the Clark brothers telephoned defendant, told her to report the rental vehicle as stolen and asked to be picked up and given money to pay for a
Robinson, Green, and the Clarks were subsequently charged with murder. When the case went to trial in 2008, however, defendant failed to appear, although subpoenaed as a witness. Attempts to locate her were unsuccessful, and the murder case was dismissed.
In April 2015, defendant was located, subpoenaed, and held in custody as a material witness. The criminal case against Robinson, Green, and the Clarks recommenced. During the June 11, 2015 preliminary hearing-despite a grant of immunity and after declining a relocation offer-defendant refused to testify. The trial court held her in contempt. Ultimately, the murder charges against the four men were once again dismissed.
Defendant was then charged with four felony counts of being an accessory after the fact to murder and one misdemeanor count of contempt for refusing to testify. She testified in her own trial and provided several reasons for refusing to testify in the murder case: she feared retaliation by the gang (she had experienced retaliation in the past); she feared for her safety and that of her daughter; she did not want to alienate her family; all four of the accused were family to her, and she did not want them to go to prison for the rest of their lives because of her testimony. Defendant further acknowledged that when she refused to testify in 2015 she knew her failure to appear as a witness in 2008 had led to the murder case being dismissed. But she denied she was helping her brother avoid trial. She testified: "Well, you guys are saying that I am helping my brother avoid trial. I believe you guys still have a case without me." She added that when her family members discovered she had spoken with Detective Skaggs, they told her not to testify because "[f]amily is first."
DISCUSSION
I. Sections 32 and 166
Defendant was convicted of four counts of being an accessory after the fact in violation of section 32. Section 32 defines an accessory as "[e]very person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted
"The crime of accessory consists of the following elements: (1) someone other than the accused, that is, a principal, must have committed a specific, completed felony; (2) the accused must have harbored, concealed, or aided the principal; (3) with knowledge that the principal committed the felony or has been charged or convicted of the felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment." ( People v. Plengsangtip (2007)
A defendant may be convicted of being an accessory even if the principal is not prosecuted. (§ 972.) Section 972 provides: "An accessory to the commission of a felony may be prosecuted, tried, and punished, though the principal may be neither prosecuted nor tried, and though the principal may have been acquitted." The prosecution against defendant as an accessory after the fact properly went forward even though Robinson, Green, and the Clarks were never brought to trial.
Defendant was also convicted of misdemeanor contempt for refusing to testify. Section 166 sets forth conduct constituting a contempt of court. Under subdivision (a)(6), a contempt includes "[t]he contumacious and unlawful refusal of a person to be sworn as a witness or, when so sworn, the like refusal to answer a material question." Contempt under section 166 is a general intent crime. ( People v. Greenfield (1982)
Defendant argues charging her with crimes purportedly carrying a potential 40-year sentence
Defendant's forfeiture notwithstanding, there is precedent for an accessory conviction under the facts of this case. Under similar circumstances, our Courts of Appeal have held defendants were properly charged with or convicted of being accessories. In Plengsangtip, supra, 148 Cal.App.4th at pages 835 through 839,
Under federal law, an individual who refuses to testify despite an immunity grant with the intent to aid a felon and who is convicted of criminal contempt may be sentenced by analogy to the crime of being an accessory after the fact. (E.g., United States v. Brady (1st Cir. 1999)
In Brady , the defendant's refusal to testify despite immunity was motivated in part by a desire to frustrate a grand jury investigation of a robbery-murder and protect his friends. Accordingly, the sentencing guideline for accessories after the fact was appropriately applied. ( Brady,
In this case, despite being held in custody as a material witness and offered immunity and relocation, defendant's refusal to testify was motivated in part by the desire to ensure that her brother, cousin, and lifelong friends were not convicted and incarcerated. As a result, four accused murderers avoided trial and possible conviction. The prosecution, having tried in vain to compel defendant's testimony, and no doubt desiring to discourage similar behavior by other witnesses, particularly in gang-related cases, resorted to the present prosecution. We find no legal authority precluding it.
We also note defendant's refusal to testify contrasts sharply with the conduct of victims and witnesses who, having previously made out-of-court statements concerning a crime, take the stand and then claim a lack of memory. Under those circumstances, if the witness's memory loss is feigned and the record supports the conclusion that the "I don't remember" statements are evasive and untruthful, the witness's out-of-court statements are properly admitted. ( Evid. Code, §§ 770, 1235 ; People v. Johnson (1992)
Defendant argues existing contempt remedies are adequate and by concluding otherwise we usurp the Legislature's function. We disagree. Defendant did much more than simply commit contempt by refusing to testify. The jury found she refused to testify with the specific intent to help four accused murderers avoid trial, conviction, and punishment. The intent with which defendant acted distinguishes her level of culpability from that of a simple contempt. The nature and potential impact of defendant's conduct-here, the inability to prosecute accused murderers-renders the contempt penalty inadequate to enable a court to vindicate its authority and to maintain the dignity and respect that is its due. (See In re McKinney (1968)
Further, as discussed above, our courts recognize conduct of this nature committed with the intent to shield an accused criminal is punishable under the accessory law. ( Plengsangtip, supra, 148 Cal.App.4th at pp. 835-839,
Defendant claims she cannot be guilty as an accessory after the fact because her silence-refusing to testify-is not an affirmative act. The Attorney General argues the law of the case doctrine applies and the issue was decided adversely to defendant when this court summarily denied her petition for a writ of mandate following the trial court's denial of her section 995 motion (Partee v. Superior
We disagree with the Attorney General's position. Although our order summarily denying defendant's writ petition included citations to legal authority, we did not issue an alternative writ or a written opinion. And, as defendant correctly argues, "the denial of a writ petition does not establish law of the case unless the denial is accompanied by a written opinion following the issuance of an alternative writ." ( Kowis v. Howard (1992)
On the merits, however, we conclude defendant's refusal to testify supports her accessory convictions. "Mere silence after knowledge of [a felony's] commission is not sufficient to constitute the party an accessory." ( People v. Garnett (1900)
However, as we explained in denying defendant's writ petition: " Penal Code section 32 proscribes '[a]ny kind of overt or affirmative assistance to a known felon,' so long as the assistance is provided with the intent that the perpetrator avoid arrest, trial, conviction, or punishment. ( Duty [, supra, ] 269 Cal.App.2d [at p.] 104 [
There was also substantial evidence defendant refused to testify with the requisite intent to support an accessory after the fact conviction-that Robinson, Green, and the Clarks avoid arrest, trial, conviction or punishment. Until she was questioned by Detective Skaggs-after she falsely told the rental company the vehicle had been stolen-defendant did not report the shooting and possible death to the police. As defendant explained to Detective Skaggs, she provided transportation and money to her brother, cousin, and friends and reported the rental vehicle stolen even though she knew there had been a shooting
IV. One Accessory Count Versus Four
Defendant argues even if there was sufficient evidence to convict her as an accessory, she could not be charged with and convicted of four accessory counts based on her single act of refusing to testify. We disagree.
Each accessory count specifically identified defendant as aiding a single individual in violation of section 32 : count 1-Robinson, count 2-Green, count 3-Bryant Clark and count 4-Byron Clark. Each count also specifically alleged defendant harbored, concealed and aided the individual "with the intent that [he] might avoid and escape from arrest, trial, conviction, and
As discussed above, a person is guilty of being an accessory when, after a felony has been committed, he or she aids a principal in the felony, with knowledge the principal has committed or been charged with the felony, and with the intent that the principal avoid or escape arrest, trial or punishment. ( § 32 ; Plengsangtip, supra,
The decisions defendant relies on for a contrary holding are unavailing. In People v. Perryman (1987)
The issue here is not whether a principal committed multiple crimes, but whether defendant aided multiple principals. Defendant may be convicted of being an accessory as to each of the four men she aided by refusing to testify; the refusal to testify
People v. Mitten (1974)
Defendant further notes, "The prosecution ... refused to concede that [she] could not be punished for all five counts under section 654, even though there could be no doubt of that under applicable law." Section 654 states: "An act
V.-VI.
DISPOSITION
The judgment is affirmed.
I concur:
KRIEGLER, Acting P. J.
Notes
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts V and VI.
All statutory references are to the Penal Code.
The jury found allegations that the crimes were committed for the benefit of a criminal street gang were not true. (§ 186.22, subds. (b)(1).)
The information erroneously indicated each accessory count carried a potential 10-year enhancement based on section 186.22, subdivision (b)(1)(C). Subdivision (b)(1)(C) applies where the crime committed is a violent felony and adds 10 years to a sentence. Being an accessory after the fact is not a violent felony. (§ 667.5, subd. (c).) In any event, the jury verdict form specified section 186, subdivision (b)(1), and the applicable gang enhancement, subdivision (b)(1)(A), could add two, three, or four years to the base term. As indicated, however, the jury did not find the gang allegations to be true.
A misdemeanor contempt conviction is punishable by up to six months in the county jail. (§§ 19, 166, subd. (a)(6).) A gang benefit finding under section 186.22, subdivision (d) elevates the offense from a straight misdemeanor punishable by up to six months in the county jail to a "wobbler"; subdivision (d) of section 186.22 is an alternate penalty provision that gives the trial court discretion for sentencing purposes to treat the contempt as a misdemeanor punishable more severely by up to one year in the county jail or as a felony punishable by one, two, or three years in state prison. (§ 186.22, subd. (d); People v. Fuentes (2016)
However, when a defendant is convicted of being an accessory after the fact for refusing to testify, any sentence for the misdemeanor contempt conviction based on the same act is subject to a section 654 stay. (People v. Mesa (2012)
Had the jury found defendant committed the crimes for the benefit of a criminal street gang, the maximum sentence would have been 12 years: on count 1, three years (§ 32 ) plus four years (§ 186.22, subd. (b)(1) ); on counts 2, 3, and 4, an additional eight months each (§ 32 ), plus one year per count (§ 186.22, subd. (b)(1) ); and on count 5 (contempt), an additional three years (§§ 166, subd. (a)(6), 186.22, subd. (d) ) stayed pursuant to section 654. Because the jury did not find the gang allegations to be true, defendant's maximum exposure was five years. As noted, she was given probation.
What constitutes the most analogous criminal conduct presents a mixed question of law and fact. (Brady,
United States Sentencing Guideline section 2X5.1 provides in part: "If the offense is a felony for which no guideline expressly has been promulgated, apply the most analogous offense guideline."
See footnote *, ante .
Concurrence in Part
For 82 years, Penal Code section 32 has proscribed "harbor[ing], conceal [ing] or aid[ing] a principal" in his or her commission of a prior felony. (Stats. 1935, ch. 436, § 1, p. 1484.) Today, the majority affirms convictions under this statute that are, so far as the Attorney General is aware, literally unprecedented in its 82-year history. (Rec. of Oral Arg. at 17:27-18:11, 19:11-19:35; see also Resp. Br. at 18-22.) No California case has ever sanctioned use of Penal Code section 32, the accessory statute, to mete out felony punishment for a witness who merely opts to remain silent (as distinguished from a witness who affirmatively tells some falsehood in a police interview or while on the witness stand to throw the police or the jury off track). Indeed, while I cannot claim to have conducted a fully exhaustive survey, I have discovered no court in any jurisdiction nationwide that has ever sanctioned this sort of an accessory after the fact prosecution. (See generally 2 LaFave, Substantive Criminal Law (3d ed. 2017) § 13.6(a), pp. 547, 555-556 [reviewing the "great majority of the [accessory after the fact] provisions in the modern codes [that] specify
The oddity of today's decision is no accident, nor is it a manifestation of the old adage that there must be a first time for everything. It is rather a product of well-intentioned but flawed legal reasoning that courts have heretofore avoided: Believing the statutorily authorized criminal penalty for refusing to testify (six months in jail) is too light a punishment for refusing to testify against defendants charged with murder, the majority blesses the invocation of Penal Code section 32, which imposes a higher penalty. As I shall discuss, however, authority dating back at least 50 years explains that resort for what might be viewed as overly light penalties for contumacious witnesses must be to the legislative process. ( In re McKinney (1968)
I
California has laws that are meant to compel recalcitrant witnesses to testify-and to punish them when they refuse. The civil contempt statutes, Code of Civil Procedure sections 1218 and 1219, allow a trial judge that finds a witness in contempt of court to imprison the witness for five days (with a $1,000 fine), or until the witness performs the act he or she omitted to perform when being found in contempt (assuming that act "is yet in the power of the person to perform"). ( Code Civ. Proc., §§ 1218, subd. (a), 1219, subd. (a).) Apart from these remedies, California also provides for criminal contempt punishment of a witness who refuses to testify when lawfully ordered to do so. Penal Code section 166 provides that a person who "contumacious [ly] and unlawful[ly] refus[es] ... to be sworn as a witness or, when so sworn, ... refus[es] to answer a material question" is guilty of a misdemeanor.
In a case decided seven years later, Keller , supra ,
On appeal, Keller argued the imposition of cumulative penalties for his refusal to answer a series of related questions was improper. ( Keller , supra ,
In the many years since McKinney and Keller , the Legislature has not seen fit to significantly increase the penalties set by the contempt statutes, which, with the possible exception of the coercive contempt remedy ( Code Civ. Proc., § 1219 ), continue to authorize a maximum of six months in jail. The prosecution in this case, however, apparently believed-mistakenly, in my view-that it had come upon a means of taking action where the Legislature has not.
II
Defendant Starletta Partee (defendant) is Nehemiah Robinson's sister and Toyrion Green's cousin. Both men, along with two
After the alleged murder, Los Angeles Police Department detective John Skaggs interviewed defendant (the interview was recorded). During the interview, defendant made statements tending to incriminate the four men as having committed, or having been involved in, Owens' murder. As the majority opinion details, defendant thereafter failed to appear as a witness at the trial of the four men, the case against the men was dismissed, police later located defendant and took her into custody, prosecutors then re-filed the case against the men, and when called as a witness at the preliminary hearing in the re-filed case where all four men were present, defendant refused to be sworn to testify and refused to answer questions posed by the prosecutor. Following defendant's refusal, the murder case against defendant's brother, her cousin, and the other two men was again dismissed.
The prosecution responded by charging defendant with one count of criminal contempt under Penal Code section 166 for refusing to testify at the preliminary hearing. The prosecution also went further-invoking Penal Code section 32 to charge defendant with four felony counts of being an accessory to the murder after the fact (one count for each of the four accused murderers). The prosecution further elected to add a gang enhancement
Defendant proceeded to trial on all five charged counts against her. The only evidence introduced by the prosecution in an effort to establish she "harbor [ed], conceal[ed], or aid[ed]" ( Pen. Code, § 32 ) her brother, cousin, and the other two men was defendant's silence in court, i.e., her refusal to take the witness oath and to answer any questions. Testifying in her own defense, defendant maintained she refused to testify in the murder case because she feared gang retribution and because the four defendants were either actually family or like family to her. Apparently unpersuaded,
At sentencing, the experienced trial judge declined to impose anywhere near the maximum authorized custodial sentence.
III
All legal sources that courts properly consult lead to the same conclusion: a mere refusal to testify is not a proper basis for a Penal Code section 32 prosecution. The conclusion flows from the text of the accessory statute as informed by established canons of statutory interpretation; from California precedent that has addressed the bounds of who may be prosecuted as an
A
Penal Code section 32 provides in full as follows: "Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony." The elements of the offense therefore required proof that defendant both "harbored, concealed, or aided" the accused murder defendants and did so with the intent they avoid trial, conviction, or punishment. ( People v. Tran (2013)
No one believes there was evidence that would allow the jury to conclude defendant "harbored" or "concealed" defendant and the other three men-not the Attorney General and not the majority. The meaning of those verbs simply would not support such a finding. So the question of affirmance or reversal of the Penal Code section 32 convictions reduces to what "aid[ed]" means as used in Penal Code section 32 and whether defendant's preliminary hearing silence meets that definition.
The ordinary understanding of the word "aid" is susceptible to more than one definition, but most suggest some affirmative act of assistance. Oxford's definition, for instance, states the verb means "[t]o give help, support, or assistance to (a person); to relieve from difficulty or distress, to succor." (Oxford English Dict. Online (2018) http://www.oed.com/view/Entry/4303?rskey=TgKZpp& result=5 & isAdvanced=false#eid [as of March 19, 2018].) The element of affirmative assistance that is suggested by that definition is consistent with common usage; one would not usually say, for instance, that when two rival companies intend to bid on a contract and one fails to submit its bid on time, the untimely bidder has come to the aid of the other company.
As we have already seen, there is not even an argument that what defendant did here would constitute harboring or concealing. And as a conceptual matter, the common usage of the words harbor and conceal incorporates an element of affirmative assistance-the provision of food or shelter, or acts taken to hide something from view or discovery. ( People v. Garnett (1900)
This element of affirmative assistance went unsatisfied by the proof at trial. Defendant's conduct was entirely passive-remaining silent when asked to take the witness oath and saying nothing when the prosecutor posed a series of questions to see if she would testify. While it might fairly be said defendant refused to aid the prosecution, that does not mean she also thereby aided her brother and the other accused men within the meaning of Penal Code section 32.
B
California cases that have addressed the meaning of Penal Code section 32 support the conclusion I reach. The majority concludes otherwise by applying precedent incorrectly.
Furthermore, the Nuckles court cited the Court of Appeal's decision in People v. Duty , supra ,
The Court of Appeal observed that, at the time of its decision (in 1969), the question of "[w]hether a falsehood to the police or other public investigators may violate the accessory statute is a new question in California." ( Duty , supra ,
The Duty court upheld the defendant's accessory conviction, but only because the defendant "had actively concealed or aided [the suspected arsonist] by supplying an affirmative and deliberate falsehood to the public authorities," which meant there was "more than passive non-disclosure."
Despite the lack of evidence of any affirmative assistance to support a Penal Code section 32 conviction here, the majority nevertheless affirms defendant's conviction-offering two reasons to justify the result it reaches. Neither withstands scrutiny.
First, the majority opinion states "there is precedent for an accessory conviction under the facts of this case" because California courts have upheld convictions "[u]nder similar circumstances." (Ante at p. 758.) The opinion is wrong on this point-there is nothing similar about the present circumstances and those in the cases the majority cites. Rather, all of the California cases the majority cites are factually dissimilar in the most critical respect:
Second, the majority argues "defendant's 'silence' was an overt or affirmative act falling within the terms of [Penal Code] section 32 because she had a duty to testify" at the murder suspects' preliminary hearing. (Ante at p. 760.) As outlined by the majority, the argument is that she had a duty to testify because she had been subpoenaed and given immunity, and " 'when an individual's criminal liability is based on the failure to act, it is well established that he or she must first be under an existing legal duty to take positive action.' " (Ante at p. 760.) This argument proves both too little and too much.
It is of course true that criminal liability for failure to act can only attach where there is a duty to act, but that does not resolve the key question, namely, what criminal liability? Defendant refused to testify when properly compelled, and there is a remedy for that: criminal contempt. The majority's argument therefore at most proves that defendant was properly convicted of some criminal offense and offers nothing persuasive to specifically establish that a conviction for "aiding" her brother and the other men, within the meaning of Penal Code section 32, was proper. At the same time, the argument also proves too much because if this is an "affirmative act" case, the majority leaves few that would not be; every possibly recalcitrant witness will get a subpoena, and every such witness, according to the majority, will therefore have a duty to testify and be an accessory to the related felony when refusing, so long as there is proof of the requisite knowledge and intent.
C
So far as I am aware, today's decision places California on the extreme outer edge of jurisdictions-indeed, in a group
Moreover, some sister states have partially or completely exempted a defendant from accessory liability where the person who the defendant assists is a close family member. (See, e.g., Mass. Gen. Laws, ch. 274, § 4 ["Whoever, after the commission of a felony, harbors, conceals, maintains or assists the principal felon or accessory before the fact, or gives such offender any other aid, knowing that he has committed a felony or has been accessory thereto before the fact, with intent that he shall avoid or escape detention, arrest, trial or punishment, shall be an accessory after the fact.... The fact that the defendant is the husband or wife, or by consanguinity, affinity or adoption, the parent or grandparent, child or grandchild, brother or sister of the offender, shall be a defence to a prosecution under this section"];
IV
If today's decision stands, accessory charges for recalcitrant witnesses are now fair game. The majority believes that is a good thing, and I agree that solving crimes and bringing perpetrators to justice is undeniably important. But there are countervailing considerations when deciding how strongly to punish someone who does not assist in prosecuting crimes, and some
The People do have an argument that some updating of the long-established contempt sanctions for refusing to testify, at least in certain cases, deserves consideration.
Defendant's Penal Code section 166 conviction is properly affirmed. I respectfully dissent from the affirmance of defendant's four Penal Code section 32 convictions.
Certified for Partial Publication.
Judge of the Orange Superior Court appointed by the Chief Justice pursuant to article VI, section 6, of the California Constitution.
A misdemeanor offense, of course, is punishable by six months in jail and a $1,000 fine. (Pen. Code, § 19.)
The gang allegation, if found true, would make the otherwise misdemeanor violation of Penal Code section 166 eligible for punishment as a felony. (Pen. Code, § 186.22, subd. (d).) In rendering its verdict, the jury in this case found the gang allegations not true.
The jury was instructed with CALCRIM No. 440 on the elements of a Penal Code section 32 violation. The instruction informed the jury it must find defendant "either harbored, concealed or aided the perpetrator" after the felony (the alleged murder) had been committed. The jury was provided no further definition of the term "aided."
During the sentencing hearing, the judge noted that over the course of his 45 years in the "business," this case was "one of the first times [he had] ever seen a case in which someone is prosecuted for refusing to testify after they've been given full immunity."
The trial judge stated he found the argument that the four men charged with murder would have been convicted had it not been for defendant's refusal to testify to be "conjecture, speculation and maybe guesswork."
Use of the noscitur a sociis canon (People v. Prunty (2015)
The majority's citations to Federal sentencing guidelines cases are not persuasive for at least two related reasons. First, the Federal sentencing guidelines are advisory guides to punishment and the task, when no guideline clearly applies, is to find one that is most analogous even if dissimilar. The sentencing guidelines have nothing to say about the elements of an offense, and the majority cites no Federal case that holds a mere refusal to testify permits a conviction for being an accessory after the fact. Indeed, in both United States v. Brady (1st Cir. 1999)
The grant of immunity to defendant is beside the point and therefore does not cabin the majority's rationale. It is the subpoena that provides the compulsion-granting immunity simply removes an otherwise viable objection to complying with the subpoena.
Other states do not provide an exemption for certain familial relationships but do provide for a reduction in punishment when the felon aided is a close family member. (See generally 2 LaFave, supra , § 13.6(a), p. 557.)