P. v. Burgin

Filed 1/6/10 P. v. Burgin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge.

Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Joseph M. Cook, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

During a visit to Pinecrest Lake in August 2007, defendant Gary Jay Burgin bumped shoulders with a man going the opposite direction on a trail. A confrontation followed and defendant punched the other man, breaking his jaw. At trial, defendant claimed he acted in self-defense. A jury found him guilty^[1]of battery with serious bodily injury in violation of Penal Code section 243, subdivision (d). Defendant was sentenced to five years of probation with 120 days of jail time.

On appeal, defendant argues that (1) the version of Judicial Council of California Criminal Jury Instructions (2007) CALCRIM No. 358 given at his trial contained error, and (2) the prosecutors attempt to impeach his testimony by mentioning her personal knowledge of matters outside the record constituted misconduct and denied him due process of law.

We conclude the former version of CALCRIM No. 358 used in this case incorrectly instructed the jury to view evidence of a defendants pretrial exculpatory statements with caution. This error, however, was harmless. We also conclude that the prosecutor inappropriately made representations of fact about matters not in evidence when cross-examining defendant, but any claim of misconduct was forfeited by defendants failure to object and request a curative admonition.

The judgment will be affirmed.

FACTS

On August 7, 2007, Benjamin Baysinger was camping with his family and friends at Pinecrest Lake. Baysinger, his friends, and brother were swimming and fishing near where the river enters the lake. Around 4:00 in the afternoon, they began walking back around the lake to the campground. Baysingers mother had asked them to be back at 5:00 for a big family dinner to celebrate Baysingers 21st birthday.

Baysinger and his friend, Faisal Qabazard, were walking side-by-side on the path near the beach behind the movie theater when they met three other people walking the other way. The path was blacktop, about four to five feet wide with open dirt or beach to its sides. Baysinger and Qabazard moved into single-file, with Baysinger walking behind Qabazard. As defendant passed Baysinger, their shoulders bumped.

Baysinger testified that he kept walking between a couple or 10 more steps because he did not think anything of what he described as a brushing of shoulders.

After the contact, and as Baysinger kept walking, defendant yelled, What the fuck? Defendant explained the purpose of his statement was that he wanted to know why this guy laid into me .

Baysinger testified that he turned around to apologize, but before he could say anything, defendant coldcocked him on the left side of his face, breaking his jaw. Baysinger stated that when he turned to apologize, defendants friends warned him that defendant was intoxicated and I should just keep walking away. Baysinger also testified that when he turned around he did not get up into [defendants] face and did not clench his fists or otherwise act aggressively towards defendant. Instead, Baysinger said defendant was the one who closed the gap between them.

Baysinger testified that after being punched, he stepped back, held his jaw, and tried to figure out what happened. Qabazard came back to see what had happened, and defendant threw a punch at him that missed. At that point, two of defendants friends grabbed defendant and tried to calm him down.

A few minutes after defendant punched Baysinger, Baysingers brother and his friends, who were behind Baysinger and Qabazard on the trail, arrived at the scene. Baysingers brother, who works as a bouncer, wanted to know what was going on and defendant threw a punch at him. Baysingers brother caught the punch, wrapped up defendant to restrain him, and told the other members of the Baysinger group to leave.

Around five oclock the morning of August 9, 2007, Baysingers mother drove him to the hospital because of the pain in his jaw. X-rays showed that Baysingers jaw was fractured. While at the hospital, Baysinger was not sure he wanted defendant to be prosecuted. The hospital, however, contacted the police. Corporal Mark Kerzich of the Tuolumne County Sheriffs Department spoke with Baysinger about the incident in an examination room at the hospital.

Baysinger had his jaw wired shut for six weeks, subsisted on a liquid diet (losing 30 pounds), and missed a semester of junior college.

Defense Case

Defendant testified in his own defense. The following four paragraphs summarize his testimony.

On the afternoon of August 7, 2007, defendant was at Pinecrest Lake with three friends. They went swimming, had a few drinks from a bottle of rum over the course of a couple of hours, and ate some food. Defendant admitted that he had a buzz from the alcohol. At one point, they left the beach and walked to a local store for food. As they were walking back to the beach, the incident with Baysinger occurred.

Defendant described Baysingers contact with him as a shoulder-check, not a brush. Referencing his experience playing football, defendant stated that Baysingers shoulder was rigid when it came into him. Defendant testified that the impact knocked the right shoulder strap of his backpack off his shoulder and spun him around towards Baysinger.

Defendant estimated that Baysinger was about three to five feet away from him when Baysinger turned around after defendant said, What the fuck? After Baysinger turned, he began to walk towards defendant. Although the two men were close to the same height, Baysinger outweighed defendant by about 30 pounds.^[2] As Baysinger walked toward defendant, defendant felt threatened. Defendant estimated that they were in each others face for about 15 seconds. When defendant saw Baysinger close his fists, defendant punched him. Defendant felt he already had been attacked and that he was defending himself.

After the Baysinger group left, defendant noticed that his backpack was missing. Defendant reported the missing backpack to the police. About an hour or hour and a half later, Baysingers brother returned the backpack to defendant. The meeting was cordial and defendant said something like: Hey, you know, your brother, you know, really tried to, you know, start something with me. Baysingers brother handed the backpack to defendant, said he was sorry, and he, Qabazard, and another person said sayonara and left.

To explain why he reacted the way he did, defendant described an altercation that occurred the prior year at a bar in Twain Harte, California. In that situation, a man had, with few preliminaries, punched him and knocked him unconscious. When asked if during that day at Pinecrest Lake he remembered the incident at the bar, defendant replied: Most definitely, yes.

Leonard Battle, a long-time friend of defendant, was with him and two other friends on August 7, 2007. Battle was walking behind defendant at the time of the incident. Battle testified that Baysinger shoulder-checked defendant and kept walking. Battle thought the shoulder-check was intentional. Battle stated that when Baysinger turned around he puffed up by sticking his chest out. Battle stated (1) Baysinger and defendant were in each others faces, (2) defendant hit Baysinger in the jaw, (3) Baysinger backed off, and (4) he, Battle, tried to pull defendant away.

The specific testimony of Corporal Kerzich and cross-examination of defendant that are relevant to the issues raised on appeal are set forth later in this opinion.

PROCEEDINGS

In November 2007, the Tuolumne County District Attorney filed a complaint charging defendant with one count of battery with serious bodily injury. In April 2008, the district attorney filed a first amended information that included a second count of assault with a deadly weapon. In May 2008, defendant pled not guilty to the charges.

Defendants jury trial began on July 23, 2008. At the beginning of the proceedings, the deputy district attorney moved to dismiss count 2, assault with a deadly weapon. During the first day, the jury had heard all of the evidence, the arguments of counsel, and the jury instructions. The next day, the jury found defendant guilty of battery with serious bodily injury.

In September 2008, the trial court granted defendant five years of formal probation with several conditions, including that he serve 120 days in county jail, pay certain fines, and abstain from the use of alcoholic beverages. Within a week of sentencing, defendant filed a notice of appeal.

DISCUSSION

I. Error in Jury Instruction Regarding Exculpatory Statements Was Harmless

A. Instruction Given to Jury

Using a version of CALCRIM No. 358, the trial court read the following instruction to the jury:

You have heard evidence that the defendant made an oral statement before the trial. You must decide whether or not the defendant made any of those statements, in whole or in part. If you decide the defendant made such statements, consider the statements along with all the other evidence in reaching your verdict. It is up to you to decide how much importance to give to such a statement. [] You must consider with caution evidence of a defendants oral statement unless it was written or otherwise recorded.

When the trial court was discussing the jury instructions with counsel, defendants attorney stated that the last sentence of the foregoing instruction should be eliminated. The trial court stated: Defense always wants that one. Defense counsel replied that the instruction would tell the jury to view [defendants] statement that he felt [Baysinger] was being aggressive with caution. The trial court then identified the purpose underlying the instruction by stating: No, no, no. That is intended to be statements against his interest ought to be viewed carefully. Defense counsel replied: I understand that, but thats not what it says. The trial court then announced its decision to give the instruction with the last sentence included.

B. Contentions of the Parties

On appeal, defendant contends the last sentence of this instruction contains legal error because it told the jury to view with caution all of the oral statements by the defendant and did not inform it that the cautionary principle applied only to incriminating statements. Defendant further contends that he was prejudiced by the instructional error because it encouraged the jury to be skeptical of his out-of-court exculpatory statements and skewed the credibility determinations to be made in favor of the prosecution.

The Attorney General argues that, as given, the instruction correctly set forth the law. Alternatively, the Attorney General argues that, even if the instruction was erroneous, the error was harmless under the applicable standard for prejudice adopted in People v. Watson (1956) 46 Cal.2d 818, 837 (Watson).

C. Cautionary Sentence Contains Legal Error

Does the cautionary language in the last sentence of the instruction quoted above misstate the law? We conclude it does.

Specifically, the last sentence violates the following principle set forth by our Supreme Court: To the extent a statement is exculpatory it is not an admission to be viewed with caution. [Citation.] [Citation.] (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.)

The cautionary language given to the jury refers to oral statements without distinguishing between inculpatory and exculpatory statements. Thus, the jury reasonably would interpret the cautionary language as applying to evidence of all oral statements, regardless of whether the statement was incriminating or not. This was error because, in accordance with People v. Slaughter, supra, 27 Cal.4th at page 1200, the cautionary language should have been limited to evidence of incriminating statements made by the defendant.

Furthermore, we note that the current version of CALCRIM No. 358^[3]is more narrowly drafted. The cautionary language at the end of the instruction now states: Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded. (Italics added.) The revision reinforces our conclusion that the prior version of CALCRIM No. 358 given in this case contained error. Because the error claimed in this case no longer exists in the current version of CALCRIM No. 358, this opinion need not be published.

D. Erroneous Cautionary Language Was Not Prejudicial

1. Standard of review

We independently review instructional error that involves state law under the standard for prejudice established by Watson. (People v. Epps (2001) 25 Cal.4th 19, 29.)

That standard requires us to affirm the jurys verdict unless, after a review of the entire record, it is reasonably probable that a result more favorable to the defendant would have been reached absent the error. (Ibid.)

Defendant argues that the instructional error rises to the level of a due process error and, thus, should be scrutinized under the standard for prejudice established in Chapman v. California (1967) 386 U.S. 18. We reject this argument because cases regarding the failure to give the cautionary language have applied the Watson standard for prejudice. (E.g., People v. Dickey (2005) 35 Cal.4th 884, 905 [mere instructional error under state law regarding how jury should consider evidence does not violate federal constitution].) In addition, the court in People v. Slaughter, supra, 27 Cal.4th 1187 applied the Watson standard. (Slaughter, at p. 1201.)

2. Testimony regarding defendants oral statements

Defendants reply brief identifies his exculpatory oral statements by referring to the testimony of Corporal Kerzich at pages 149 through 151 of the reporters transcript. Those pages contain the following exchange between Laura O. Leslie, the deputy district attorney, and Kerzich about a telephone conversation he had with defendant about a month after the incident:

Q. And what did [defendant] tell you happened at Pinecrest?

A. He told me that he had been up there with friends, and they were walking on Pinecrest trail and they passed by two other men headed the opposite direction, and one of those persons had hit him with his shoulder as he walked past.

Q. And did [defendant] tell you what he did after the subject hit him in the shoulder with his shoulder?

A. He wasnt pleased with the situation and yelled out, What the fuck?

Q. Okay. And then what happened next, according to his statement to you?

A. He told me that [Baysinger] got up into his face, at which point he thought he was going to be hit and decided to punch Baysinger in the face.

Q. Did you ask him why he thought he was going to be hit?

A. He told me he had been drinking and that he flashed back to an incident that occurred the previous year at a bar in Twain Harte. Told me that a similar thing had happened to him, somebody hit him with a shoulder, and in that incident, he hadnt responded and that subject knocked him out.

Defendants reply brief asserts this is the testimony by Corporal Kerzich that was at the heart of [defendants] self-defense case, which was supported not only by [defendants] testimony, but by the testimony of [defendants] friends, who were called by the prosecution. This was exculpatory evidence that [defendant] was entitled to have the jury consider without cautionary instructions to the contrary.

Corporal Kerzich next testified that defendant did not mention anything about Baysinger saying something to provoke a fight or doing anything else aggressive after their shoulders bumped. The direct examination continued:

Q. So, his explanation was that it was a flashback to this incident a year before?

A. He told me he didnt want the same thing to happen that had happened at the bar, so he punched Baysinger first.

Defense counsel began his cross-examination of Corporal Kerzich by questioning him about his narrow view of what constituted aggressive actions by Baysinger: [W]hen you testified earlier today, [defendant] told you that Baysinger got right up into his face, correct? Kerzich replied: I said he got into his face, yes. As a result of this exchange, defense counsel made the point that defendant did in fact tell Kerzich about aggressive action taken by Baysinger after the initial shoulder bump.

3. Analysis of prejudice

The purpose of the cautionary language in the instruction is to assist the jury in determining if the oral statement was in fact made by the defendant. (People v. Beagle (1972) 6 Cal.3d 441, 456.) The second sentence of the version of CALCRIM No. 358 given to the jury identifies this purpose by stating: You must decide whether or not the defendant made any of those statements, in whole or in part.

In the circumstances of this case, there is no reasonable probability that the jury would have found that (1) defendants statements that Baysinger got into his face after the shoulder bump were not made by him during his telephone conversation with Corporal Kerzich or (2) Corporal Kerzich inaccurately reported defendants exculpatory statements. (People v. Beagle, supra, 6 Cal.3d at p. 456 [failure to give cautionary instruction regarding oral admission was not prejudicial because no reasonable probability that the jury would find that the statements either were not made or were not reported accurately].)

We reach this conclusion regarding prejudice because there was no controversy during the trial about what defendant said to Corporal Kerzich. (See People v. Dickey, supra, 35 Cal.4th at pp. 905-906 [where no conflict exists about defendants statements, omission of cautionary language is not prejudicial].) At trial, defendants testimony was consistent with Kerzichs testimony regarding what defendant told him. Defendant testified that Baysinger bumped him with his shoulder and spun defendant around. Defendant stated that he said What the fuck and Baysinger walked toward him and was in his face. Thus, there was no conflict between Kerzichs testimony about defendants statements and defendants own testimony to the jury.^[4]

Because there was no conflict about what defendant said, the jury had no reason to find that defendant did not tell Corporal Kerzich that Baysinger got into his face or that the officer did not accurately recount that statement when testifying.

In addition, defendant interprets the cautionary language given as though it were directing the jury to view his version of events with skepticism. Defendant argues his interpretation is supported by the California Supreme Courts decision in People v. Williams (2008) 43 Cal.4th 584 (Williams). We disagree with this interpretation. The cautionary language did not tell the jury to view the defendants statement with caution, it told the jury to consider with caution evidence of a defendants oral statement . (Italics added.) When read in the context of the entire instruction, the caution was directed towards the testimony of other witnesses that recounted what defendant said, not the credibility of defendant when he made the statements.

Furthermore, we do not read the Williams decision as adopting defendants interpretation. In Williams, two tape-recorded statements the defendant made to the police were played for the jury. (Williams, supra, 43 Cal.4th at p. 638.) [T]he trial court instructed the jury that [e]vidence of an oral confession or an oral admission of the defendant should be viewed with caution. (Id. at p. 639.) The court concluded it was error to give the instruction because caution did not apply when the tape-recorded statements are played for the jury. (Ibid.) The court also concluded that no prejudice resulted from the error, stating we are confident the jury understood the instruction did not apply to the exculpatory aspects of defendants statements. Defendant could not have been prejudiced by the erroneous giving of the instruction to view his admissions with caution. (Id. at p. 640, italics added.)

We recognize that this explanation by the California Supreme Court seems to focus on the content of the defendants statements rather than the evidence that the defendant made the statement and, therefore, one could infer that the court adopted the interpretation advocated by defendant in this case. We also recognize that other inferences are possible and the parties in Williams did not raise the question of interpretation presented in this case. Consequently, we do not regard Williams as authority for a proposition that it did not address. (DCM Partners v. Smith (1991) 228 Cal.App.3d 729, 739 [a case does not stand for a proposition neither discussed nor analyzed].) Therefore, we will interpret CALCRIM No. 358 based on the words it actually contained, rather than interpreting the instruction so that some words are rendered nugatory.

We conclude that in the circumstances of this case it is not reasonably probable that the jury would have reached a result more favorable to defendant if the cautionary language had been narrowed to apply only to testimony about defendants incriminating oral statements.

II. Prosecutorial Misconduct

Defendant contends that the prosecutor committed misconduct when she injected into the case her alleged personal knowledge of a prior assault that defendant had suffered. Defendant argues the misconduct violated state law as well as his constitutional right to due process.

The Attorney General contends that (1) defendant forfeited the claim of error by failing to request a curative admonition, (2) no inappropriate vouching occurred, and (3) no prejudice occurred because, among other things, the jury was instructed that counsels comments and questions were not evidence.

A. Transcript of the Cross-examination of Defendant

While testifying in his own defense, defendant told about an altercation that occurred the prior year at Villa DOro, a bar in Twain Harte, California. During that incident, defendant was confronted and quickly knocked unconscious by Kevin Porter.^[5]

The deputy district attorneys cross-examination of defendant began as follows:

Q. You know, Im glad you said the name of the person that apparently you were in the altercation with at the Villa DOro

A. Uh-huh.

Q. Mr. Kevin Porter, because Im the D.A. that prosecuted that case. I remember the incident well. I did the jury trial.

[Defense counsel]: Is [the prosecutor] testifying?

The Court: No, she is asking a question.

[Prosecutor]: Q. And, in fact

[Defense counsel]: I object to the form of the question.

The Court: Overruled.

[Prosecutor]: Q. That incident occurred in early 2006.

A. Probably right.

Q. Okay. So a year and four, five months prior to this incident?

A. Pard[on] me? It has been a year since this incident, so its been a while. Its been a year since this happened. It is a while. But I have a pretty good memory. I remember what happened.

Q. Right. So do I. [] A year and four months prior to this incident. And, in fact, you never sought medical treatment for this knockout, did you?

A. No.

Q. In fact, you werent even on our witness list or testifying in that trial regarding that incident.

A. No, I didnt.

Q. Mr. Porter, who actually did up the dish work, who lives in San Francisco, is the victim, the dish washer who lives in San Francisco?

A. I believe he may now, yes.

Q. Okay. And Mr. Porter did some damage to the Villa DOro property?

A. And to me.

Q. Broke things, correct?

A. And to me.

Q. Okay. Were you part of that trial?

A. No.

Q. No. Okay. And, in fact, the one individual who was beaten up by Mr. Kevin Porter, who did receive medical treatment, that was not you, correct?

A. Yeah, thats correct.

The foregoing is the entire exchange between the deputy district attorney and defendant regarding the incident at the Villa DOro. After receiving defendants last answer, the deputy district attorney moved to a new topic.

B. Misconduct and Referring to Matters Outside the Record

The California Supreme Court has established that a prosecutor commits misconduct by referring in argument to matters outside the record. [Citation.] (People v. Cunningham (2001) 25 Cal.4th 926, 1026.) Also, devices by which a cross-examining attorneys own unsworn statements are presented to the jury as proof have been condemned. (E.g., Love v. Wolf (1964) 226 Cal.App.2d 378, 390-391 [series of did you know that questions were inappropriate]; see generally Gershman, Prosecutorial Misconduct (2d ed. 2009-2010)  10:47, pp. 446-447 [prosecutor becoming unsworn witness].) For example, it is inappropriate for a prosecutor to vouch for the veracity of a witness. Improper vouching occurs when the prosecutor places the prestige of the government behind a witness through personal assurances of the witnesss veracity or suggests that information not presented to the jury supports the witnesss testimony. (People v. Fierro (1991) 1 Cal.4th 173, 211.)

In this case, the prosecutor did not vouch for the veracity of a witness. Instead, the opposite occurredthe prosecutor used information that she provided the jury in her questions to impeach the defendants testimony. Specifically, the prosecutors prefatory remarks and questions presented the following matters as facts to the jury: (1) She prosecuted Kevin Porter for the incident that occurred at the Villa DOro; (2) the matter was tried before a jury; (3) she remembered the incident well; (4) one individual was beaten up by Kevin Porter; and (5) that individual was not defendant. We find the prosecutors presentation of her version of these facts to the jury was misconduct. In so doing, the prosecutor acted as an unsworn witness. (See People v. Maldonado (2009) 172 Cal.App.4th 89, 99 [citing examples of misconduct where the prosecutor acts as an unsworn witness and attests to facts outside the record].)

C. Preservation of Error

A claim of prosecutorial misconduct may be forfeited by failing to make a sufficiently specific objection in the trial court or by failing to request an admonition. (People v. Brown (2004) 33 Cal.4th 382, 398-399.) When no admonition is requested, the point is reviewable on appeal only if an admonition would have been futile or would not have cured the harm caused by the misconduct. (People v. Earp (1999) 20 Cal.4th 826, 858.)

Here, while defense counsel did object, initially, to the prosecutors prefatory remarks, counsel did not object later, when it became clear that the prosecutor was misusing the unsworn information she had provided the jury. Neither did counsel request an admonition. Accordingly, the claim of misconduct was not preserved for appeal.

D. Ineffective Assistance of Counsel

Defendants reply brief argues that, if the claim of prosecutorial misconduct was forfeited, defendant is entitled to relief for ineffective assistance of counsel. The reply brief also acknowledges that claims of ineffective assistance of counsel typically are pursued through a petition for writ of habeas corpus unless there is no conceivable tactical reason for counsel to have taken the challenged action.

An appellant bears the burden of proving ineffective assistance of trial counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) A claim of ineffective assistance will not be accepted on direct appeal unless the appellate record makes clear that the challenged act or omission was a mistake beyond the range of reasonable competence. (People v. Montiel (1993) 5 Cal.4th 877, 911.) To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one or unless there simply could be no satisfactory explanation. (People v. Hart (1999) 20 Cal.4th 546, 623-624.)

Generally, where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a petition for writ of habeas corpus. The evidentiary hearing in a habeas corpus proceeding provides the opportunity for trial counsel to describe fully the reasons for his or her decision for failing to object or otherwise preserve a claim. (People v. Pope, supra, 23 Cal.3d at p. 426.) The instant record does not illuminate the basis for trial counsels conduct. Therefore, we will affirm the judgment.

DISPOSITION

The judgment of conviction is affirmed. The trial court is directed to correct its sentencing minute order in accordance with footnote 1, ante.

__________________________

DAWSON, Acting P.J.

WE CONCUR:

________________________________

HILL, J.

________________________________

POOCHIGIAN, J.

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^[1]The minute order at sentencing incorrectly notes defendant was convicted by a plea of guilty.

^[2]Baysinger was six feet tall and weighed 200 pounds on the day of the incident. Defendant was approximately six feet tall and weighed 170 pounds.

Qabazard described himself as about six feet tall and around 230 to 240 pounds. He described Baysingers brother, Zachary, as six-three and about 225 to 230 pounds.

^[3]CALCRIM No. 358 was new in January 2006. It was revised in June 2007 and December 2008. The trial was held in July 2008 and, as a result, the most recent revisions were not available to the trial court.

The Bench Notes to the current instruction interpret People v. Slaughter, supra, 27 Cal.4th 1187 to mean the admonition to view non-recorded statements with caution applies only to a defendants incriminating statements.

^[4]The lack of conflict is further demonstrated by the fact that the accuracy of Corporal Kerzichs testimony regarding what defendant told him was not disputed during closing argument.

^[5]Corporal Kerzich testified that defendant mentioned the incident during their telephone conversation. Kerzichs testimony is set forth in part I.D.2, ante.