Filed 8/27/20 P. v. Venson CA2/2
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                        DIVISION TWO



THE PEOPLE,                                                   B299412

         Plaintiff and Respondent,                            (Los Angeles County
                                                              Super. Ct. No. BA140055-01)
         v.

CLIFFORD VENSON,

         Defendant and Appellant.


     APPEAL from an order of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Affirmed.

     Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Deputy
Attorney General, Noah P. Hill and Ryan M. Smith, Deputy
Attorney Generals, for Plaintiff and Respondent.
                            ******
      Clifford Venson (defendant) argues that the trial court
erred in denying his petition for resentencing under Proposition
36, the 2012 voter initiative that modified our state’s Three
Strikes Law. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds.
      1
(b)-(j).) The court denied defendant relief after ruling that
resentencing him would “pose[] an unreasonable risk of danger to
public safety.” This ruling was well within the court’s discretion.
Accordingly, we affirm.
          FACTS AND PROCEDURAL BACKGROUND
I.      Facts
        A.    The charged crimes
        In October 1996, defendant jumped into the driver’s seat of
a tow truck while its operator was busy helping a motorist jump
start a car, and drove away at a “high rate of speed.” When law
enforcement later spotted the stolen tow truck and signaled for
defendant to pull over, he did precisely the opposite: He fled,
driving on the wrong side of the street, speeding 50 miles per
hour in a 25 mile-per-hour zone, and blowing through a red light.
The chase ended when defendant slammed the tow truck into a
parked car, fled on foot, and was found cowering in a trash can.
When arrested, defendant explained that he “took the truck
because [he] needed to get some rock [cocaine].”
        A jury ultimately convicted defendant of (1) unlawful
driving of a vehicle, as a felony (Veh. Code, § 10851, subd. (a));
and (2) evading an officer with willful disregard for the safety of
others (id., § 2800.2, subd. (a)). The jury also found that
defendant had three prior convictions that constituted “strikes”
under our Three Strikes Law—namely, a 1988 conviction for

1     All further statutory references are to the Penal Code
unless otherwise indicated.




                                 2
robbery (§ 211), a 1988 conviction for assault with a firearm
(§ 245, subd. (a)(2)), and a 1992 conviction for robbery (§ 211).
The trial court imposed a “third strike” sentence of 25 years to
life in prison.
       B.    Defendant’s criminal history prior to the
charged crimes
       Between June 1987 and the charged crimes, defendant
committed a series of crimes for which he was convicted. During
this time, defendant was using both marijuana and cocaine, and
later explained that he “committed crimes to support [his] drug
habit.”
       In June 1987, defendant was convicted of the misdemeanor
of taking a motor vehicle (Veh. Code, § 10851, subd. (a)), and was
sentenced to one year of summary probation with a 30-day jail
sentence.
       While on probation, defendant in August 1987 unlawfully
drove another vehicle. He was convicted of that misdemeanor
(Veh. Code, § 10851, subd. (a)), and was sentenced to two years of
summary probation with a 90-day jail sentence.
       While on probation, defendant committed two sets of
crimes. In April 1988, he walked up to a person pumping gas at a
gas station, pointed a gun at his stomach and demanded his car
keys. Defendant then ordered the person in the car’s front
passenger seat to get out of the car; when that person hesitated,
defendant told the passenger he was “not fooling around” and
fired a shot into the gas station’s overhead canopy. In June 1988,
defendant committed a second degree burglary (§ 459) and also
unlawfully drove a vehicle (Veh. Code, § 10851, subd. (a)). For
the April 1988 crimes, defendant was convicted of robbery (§ 211)
and assault with a firearm (§ 245, subd. (a)(2)), both of which are
“strikes,” and was sentenced to state prison for seven years. For




                                 3
the June 1988 crimes, defendant was convicted of second degree
burglary and unlawful driving, and sentenced to state prison for
two years, to run concurrently with the seven-year sentence.
      Less than three months after being paroled, defendant in
April 1992 approached a person in a parking lot who was leaning
into his vehicle, grabbed his hair, and yanked him out of the
vehicle. Defendant pointed a large gun at the person and asked
for the car keys. When the person hesitated, defendant
chambered a round in the gun. The person then handed over the
keys, and defendant drove off. Defendant was convicted of
robbery. (§ 211) The robbery conviction was a “strike.”
Defendant was sentenced to state prison for five years.
      Less than ten months after being paroled, defendant in
October 1995 took the change that a gas station attendant was
handing back to a customer, saying “give me that shit.”
Defendant was convicted of petty theft with a prior (§ 666), and
sent back to state prison as a parole violation.
      Less than ten days after being paroled again, defendant
committed the charged crimes.
      C.     Defendant’s conduct while in prison on the
charged crimes
      Between defendant’s arrest on the charged crimes (on
October 20, 1996) and 2018, defendant incurred 39 serious rules
violations in prison.
      Several involved acts of violence. Defendant engaged in
mutual combat with other prisoners on many occasions—in June
1999, October 2000, September 2002, and February 2017.
Defendant was also violent with correctional officers. In October
2006, he told a correctional officer “you ain’t tough mother
fucker” and “You ain’t nothing but a bitch,” refused to comply
with the officer’s commands, and was ultimately restrained by




                                4
multiple officers. In December 2006, after a fight with another
inmate, defendant disobeyed orders to drop to the ground, which
prompted officers to use pepper spray and force to take him to the
ground. And in May 2018, defendant while being transferred to a
different cell told a correctional officer, “Fuck you, I ain’t moving
motherfucker!” before punching the officer in the face.
       Several involved threats of violence. In October 2005,
defendant gave a note to a female correctional officer saying, “I
get released, I’m stalking you.” In July 2010, defendant told
prison officials that he was “going to assault” “any inmate you
put in my cell.”
       Several involved sexual conduct. Defendant repeatedly
masturbated in front of, or exposed his genitals to, female
correctional officers or prison staff—in April 2002, May 2004,
September 2004, February 2005, April 2005, June 2005 and
November 2016. He made comments or sent notes expressing
sexual desire for female correctional officers—in June 1998,
October 2005, February 2006, and September 2006. He called a
female correctional officer on a contraband cell phone in April
2018.
       Several involved alcohol and drugs. In February 2001 and
March 2002, defendant possessed inmate-manufactured alcohol
in his cell. In June 2010, defendant attempted to smuggle into
the prison several balloons containing more than 7 grams of
marijuana and laced with cocaine that his mother had brought
him. And in September 1999, defendant refused to provide a
urine sample.
       The remainder chiefly involved blatant refusals to follow
orders. On repeated occasions, defendant refused orders to be
housed with a cellmate—in May 2005, April 2006, April 2007,




                                  5
June 2007, February 2011, and September 2018. He went so far
as to assault another inmate placed in his cell in December 2006.
He also refused to follow other orders of correctional officers or
prison staff in June 2001, May 2004, June 2006, December 2009,
September 2013, and December 2013. In April 2009, defendant
stole food and in July 1998 he and others flooded their cells by
clogging the toilets and sinks.
       By July 2016, defendant’s “classification score”—which is a
measure of an inmate’s “security risk” (In re Stoneroad (2013)
                                    2
215 Cal.App.4th 596, 605—was 134. Because the minimum
score for life prisoners is 19, defendant’s score reflects an
“elevated” security risk.
II.    Procedural Background
       In March 2013, defendant filed a petition for resentencing
under Proposition 36. The trial court issued an order to show
cause, entertained extensive briefing from the parties, and held
an evidentiary hearing.
       In June 2019, the trial court issued a 15-page order
denying defendant’s petition. Because defendant was
indisputably eligible for relief under Proposition 36, the court
focused its analysis on whether defendant was suitable for
relief—that is, whether he would pose an unreasonable risk of
danger if resentenced.
       The court noted that defendant’s criminal history, because
it was “immutable,” was relevant only to the extent it
“support[ed] [a] . . . conclusion” that defendant “continue[d] to
pose an unreasonable risk to public safety,” and found here that
it did: It was “lengthy,” and demonstrated that neither prior


2     It was as high as 142 in July 2013.




                                6
punishment nor being under supervision (through parole or
probation) had “deter[red] [defendant] from reoffending.” Indeed,
the court remarked, “[s]ince the late 1980s, [defendant] ha[d]
been unable to remain in the free community for more than
. . . ten months without reoffending.” Although defendant’s prior
convictions were “remote in time,” the court reasoned, those
convictions “demonstrate[d] a pattern of criminality that ha[d]
not changed since 1987” and that “[t]his pattern shows a clear
risk of current dangerousness upon release.”
        The court then catalogued the 39 serious rules violations
defendant incurred while in prison. Although “most . . . were for
nonviolent offenses[] and many [were] very old,” the court
explained, “the sheer number of offenses is indicative of
[defendant’s] inability to follow the law, even in a controlled
setting.” Of particular note was defendant’s 2018 violation for
battery upon a correctional officer, which the court found to be
“probative of [a] current risk of dangerousness.” This security
risk was reflected by defendant’s “elevated” classification score of
134. The court found that defendant had “not participated in a
meaningful amount of rehabilitative programming” over his 22-
year stint in prison. Although defendant had “made considerable
progress toward his college degree,” he had made “little to no”
effort to address the “‘rock’ cocaine habit that drove [him] to
commit the current offense[s].” Further, defendant’s plan to “live
with his mother upon release” would leave defendant in need of
money, a need that his history indicated would be met by theft.
        The court lastly noted that defendant’s age of 52, while
often a factor in showing less risk of danger, did not do so in this
case given his penchant for using weapons and his recent battery
on a correctional officer. “On balance,” the court concluded,




                                 7
defendant’s “criminal history combined with disciplinary history
remain predictive of current dangerousness.”
       Defendant filed this timely appeal.
                             DISCUSSION
       In 2012, the voters enacted Proposition 36 and thereby
altered our state’s Three Strikes Law. As pertinent here,
Proposition 36 created a mechanism by which defendants
previously sentenced to a third-strike sentence (of 25 years to life
in prison) could petition a court to resentence them to a second-
strike sentence (of double the statutorily prescribed prison
sentence for the “strike” offense) if the offense(s) triggering the
third-strike sentence were not “serious” or “violent” felonies.
(§§ 1170.126, subds. (a) & (b), 1170.12, subd. (c)(2)(C), 667, subd.
(e)(2)(C).) In litigating a Proposition 36 petition, the defendant
bears the initial burden of making a prima facie showing that he
is eligible for relief; the People bear the burden of establishing
the defendant’s ineligibility for relief, if any, beyond a reasonable
doubt; and, if the defendant is found to be eligible, the trial court
then makes the “discretionary decision” whether “resentencing
the [defendant] would pose an unreasonable risk of danger to
public safety” based on facts that the People must prove by a
preponderance of the evidence. (People v. Frierson (2017) 4
Cal.5th 225, 234 (Frierson); People v. Buford (2016) 4 Cal.App.5th
886, 893, 898-899, 901 (Buford); see § 1170.126, subd. (f).)
Because it is undisputed that defendant satisfied his initial
burden and the People concede that defendant is eligible for
Proposition 36 relief (because his convictions for unlawful driving
of a vehicle and recklessly evading an officer are neither “serious”




                                  8
                      3
nor “violent” felonies), the propriety of Proposition 36 relief in
this case turns solely on whether the trial court erred in
concluding that resentencing defendant would pose an
unreasonable risk of danger to public safety. Because trial courts
enjoy “broad[] discretion” in making this determination (Frierson,
at p. 240), our review is confined to examining whether that
discretion was abused and, as a subsidiary matter, whether any
facts the trial court relied upon were supported by substantial
evidence in the record. (Buford, at p. 895; see generally People v.
Macabeo (2016) 1 Cal.5th 1206, 1212 (Macabeo).)
       A.    Analysis
       “In exercising its discretion” to determine whether
“resentencing the [defendant] would pose an unreasonable risk of
danger to public safety,” Proposition 36 provides that a trial court
“may consider” (1) the defendant's “criminal conviction history,
including the type of crimes committed, the extent of injury to
victims, the length of prior prison commitments, and the
remoteness of the crimes”; (2) the defendant's “disciplinary record
and record of rehabilitation while incarcerated”; and (3) “[a]ny
other evidence the court, within its discretion, determines to be
relevant in deciding whether a new sentence would result in an
unreasonable risk of danger to public safety.” (§ 1170.126, subd.
(g).)
       Under this governing law, the trial court did not abuse its
discretion in concluding that resentencing defendant would pose


3     Defendant’s unlawful driving conviction is subject to
reduction to a misdemeanor under Proposition 47 (§ 1170.18), but
defendant has not yet sought that relief and that possibility does
not alter the Proposition 36 analysis given defendant’s concurrent
conviction for reckless evasion.




                                 9
an unreasonable risk of danger to public safety. The court
considered each of the statutorily enumerated factors, and did so
in order to determine what light they shed on whether defendant
“currently pose[d] an unreasonable risk of danger to public
safety.” (Italics added.) The court examined defendant’s
extensive but temporally remote history of criminal convictions,
and concluded that it contributed to a finding of a current,
unreasonable risk of danger because it demonstrated a pattern of
violence-laden property crimes driven by drug addiction that,
critically, were not deterred either by prior punishments or by
being under parole or probationary supervision. Such an
“unrelenting record of recidivism, even while on parole or
probation from previous felony convictions” marks defendant as
“the kind of revolving-door career criminal for whom the Three
Strikes law was devised” (People v. Gaston (1999) 74 Cal.App.4th
310, 320 (Gaston)), and hence the type of criminal who poses the
greatest risk of danger to public safety. And although
defendant’s incarceration for the last 22 years precluded the
existence of any recent evidence of his tendency to commit more
crimes outside of prison, his disciplinary history while in prison
reflected defendant’s continued inability “to comply with the
rules”—here, “of the institution”—that constitutes further
evidence that defendant “will be unable to follow society’s laws”
“when released” (In re Reed (2009) 171 Cal.App.4th 1071, 1085),
and hence will pose an unreasonable risk of danger to public
safety if released. Further, the sum total of defendant’s efforts to
address the “root cause” of his criminal behavior—his addiction to
drugs and his willingness to commit crime to sustain that
addiction—was his attendance at one alcoholic’s anonymous
meeting and four narcotics anonymous meetings over the course




                                10
of 22 years. Defendant’s failure to address this “‘root cause’” only
heightens the risk of recidivism, and hence the danger he poses to
public safety if released. (Gaston, at p. 322 [so noting].) Because
the trial court considered all of the relevant factors, and did so in
a reasonable way, it acted well within its discretion in concluding
that resentencing defendant would pose an unreasonable danger
to public safety.
       B.    Defendant’s arguments
       Defendant makes what boils down to three categories of
challenges to the trial court’s analysis and conclusion.
             1.     The applicable standard
       Defendant argues that the trial court applied the wrong
legal standard in examining whether resentencing him would
pose an unreasonable risk of danger to public safety. Specifically,
he argues that Proposition 36 altered the “spirit” of the Three
Strikes Law, thereby (1) erecting a “presumption” that all
defendants eligible for Proposition 36 relief are entitled to that
relief except in “the most extraordinary cases,” and (2) creating
an entitlement to Proposition 36 relief protected by due process
that precludes a trial court from arbitrarily choosing which
portions of the record to examine. At bottom, defendant urges
that Proposition 36 puts a thumb on a petitioning defendant’s
side of the scale when it comes to granting relief.
       Defendant is wrong. Every court to consider the issue has
concluded that Proposition 36 does not erect a “presumption” in
favor of relief that may be overcome only in the most
extraordinary of cases. (Buford, supra, 4 Cal.App.5th at pp. 901-
903 [so holding]; People v. Superior Court (Kaulick) (2013) 215
Cal.App.4th 1279, 1302-1303 [same].) And our Supreme Court
has explicitly held that Proposition 36 “does not create an




                                 11
entitlement to resentencing” (People v. Perez (2018) 4 Cal.5th
1055, 1064), which tends to undermine defendant’s entitlement-
based theory for due process protection. In any event, we fail to
see what weight a due process-based protection would add given
that Proposition 36 itself requires a court to consider “any”
“relevant” “evidence” while examining risk (§ 1170.126, subd.
(g)(3)), that courts have already construed Proposition 36 to
require a consideration of the totality of the circumstances
(Buford, at p. 903; People v. Esparza (2015) 242 Cal.App.4th 726,
746), and that the discretion that Proposition 36 confers upon a
trial court would be abused if the court acted arbitrarily in
denying relief (e.g., People v. Fudge (1994) 7 Cal.4th 1075, 1105).
              2.    Objections to specific portions of trial court’s
analysis
                    a.    Criminal history
       Defendant asserts that his criminal history is “immutable.”
As a result, he (1) suggests it cannot be considered at all because
he has already “paid his debt” to society, (2) asserts that it is
relevant only if there is a “nexus” to the current risk he poses to
public safety, and the trial court articulated no such nexus. We
reject defendant’s suggestion that a trial court may not consider a
defendant’s criminal history for the simple reason that
Proposition 36 expressly provides that it “may.” (§ 1170.126,
subd. (g)(1)).) We also reject defendant’s assertion that the trial
court abused its discretion in analyzing his criminal history. The
trial court acknowledged the age of defendant’s prior convictions
as well as the fact that they are relevant only to the extent they
“support [a] conclusion” that he “continues to pose an
unreasonable risk to public safety”—that is, to the extent there is
a nexus. Contrary to what defendant asserts, the trial court went
on to articulate that nexus—chiefly, that defendant’s criminal




                                12
history reflects a pattern of committing crimes that is undeterred
by punishment or by supervision, and that the persistence of this
pattern creates a risk that defendant will fall right back into it
following release and thus pose an unreasonable risk of danger to
public safety. This risk was heightened, the trial court further
explained, by defendant’s continued and persistent pattern of
violating the rules while in prison. The trial court was not
obligated to explain any further.
                    b.    Prison disciplinary history, rehabilitative
programming, and post-release plans
       Defendant objects to two aspects of the trial court’s analysis
of his disciplinary history in prison. First, he contends that the
trial court was wrong to rely on his May 2018 rule violation for
committing battery on a correctional officer because (1) any
reliance is forbidden because that violation was on appeal and
thus not definitively resolved, and (2) the evidence supporting
that violation has a “dubious . . . foundation.” We reject these
contentions. As noted above, the trial court may rely upon any
factual findings supported by substantial evidence (Macabeo,
supra, 1 Cal.5th at p. 1212), and a factual finding is supported by
substantial evidence when the record as a whole and viewed in
the light most favorable to that finding contains evidence that is
reasonable, credible and of solid value from which a reasonable
judge could make that finding. (People v. Salazar (2016) 63
Cal.4th 214, 242.) Although defendant was granted some relief
in the second and third level appeals of the May 2018 rule
violation, that relief was based on the failure of the prison to
ensure that the complaining correctional officer was present in
person or by teleconference; the second-level appeal went out of
its way to clarify that “[t]he findings of the disciplinary hearing
were supported by the evidence presented at the hearing,” and




                                 13
the third-level appeal did not disturb that clarification. Given
the evidence elsewhere in the record, the trial court had an ample
basis for finding that the May 2018 incident occurred. Even if
this incident were disregarded, defendant’s disciplinary record
demonstrated a continued risk of danger to public safety in light
of his February 2017 mutual combat, his April 2016 harassment
of a female correctional officer, and his still-“elevated”
classification score. Second, defendant notes that he obtained a
$7,000 walk-away settlement with the California Department of
Corrections in federal court in 2014 based on allegations of injury
arising from his December 2006 fight with a correctional officer,
such that every serious rule violation after that incident is the
tainted product of a conspiracy to retaliate against him for
obtaining this settlement. This argument is silly. Logically, it
makes no sense: Unless the prison officials were clairvoyant,
they would have no reason to conspire against him before he
settled with the Department. Factually, it is based on nothing
but speculation and was within the trial court’s discretion to
reject it as such. (People v. Ramon (2009) 175 Cal.App.4th 843,
851 [“[s]peculation is not substantial evidence”].)
       Defendant objects to the trial court’s characterization of his
rehabilitation efforts as “limited.” In his view, his efforts are
“impressive” and he points to the completion certificates he has
received for attending three-months’ worth of weekly meetings of
Criminals and Gang Members Anonymous, attending a workshop
on Exploring the Underlying Causes of Criminality, attending six
sessions of a program for inmate veterans, completing a 12-week
post-traumatic stress disorder class, and completing a 22-hour
course on Alternatives to Violence; his completion of nearly all
the college credits he needs to obtain an Associate’s degree; and




                                 14
his qualifications and work as a tack welder and kitchen scullery
worker as well as a handful of positive commendations for that
work. The court erred, defendant urges, by focusing on his lack of
effort in addressing his drug and alcohol issues. There was no
error. Where, as here, the defendant’s criminality can be traced
to a “root cause,” failing to address that root cause is a basis for
concluding that the related criminality will continue. (Gaston,
supra, 74 Cal.App.4th at p. 322 [so noting, when root cause is
drug dependency].) Here, defendant has repeatedly
acknowledged that his multi-year crime spree was linked to his
drug use, yet he has done nothing to address his drug issues
beyond attending five one-hour meetings in 22 years. The trial
court did not abuse its discretion in weighing this deficiency more
heavily than defendant’s completion of college credits.
       Defendant objects that the trial court misstated his post-
release plan when it concluded that he was going to “live with his
mother upon release.” Defendant complains that he never
“expressly state[d]” this plan and that the record also contained
evidence that defendant had previously been admitted into three
residential transition facilities, such that the record was
ambiguous about his plan and the trial court had a duty to
further investigate and clarify what defendant’s plan actually
was. This objection misunderstands both this court’s job and the
trial court’s job. Our job is merely to assess whether the trial
court’s factual finding regarding defendant’s post-release plan is
supported by substantial evidence in the record, and here it most
certainly is: Defendant (and his mother) repeatedly informed the
court that he intended to be a live-in caregiver for his elderly
mother and specifically told the trial court that was his plan if
released. This constitutes evidence supporting the trial court’s




                                15
finding notwithstanding defendant’s admission to the three
transition facilities, especially since defendant never indicated
that his plan was to live first at one of those facilities and then
with his mother. And the trial court’s job is to make factual
findings based on the evidence presented, not to investigate or
seek clarification of the evidence defendant presents. Defendant
also adds that his lack of employment is not enough by itself to
pose a risk of danger, but the trial court never so ruled: It looked
at the totality of defendant’s pattern of criminal behavior, his
continued unwillingness to obey the rules, his failure to address
the root cause of his criminal behavior, and his plan to put
himself back in the same situation upon release (that is, living
with an unaddressed drug issue and without any lawful income
stream), and concluded that the totality of these circumstances
presented a very real risk that defendant would recidivate and
thus pose an unreasonable risk of danger to public safety.
             3.     Reweighing
       Although defendant insists he is not asking this court to
reweigh the evidence, many of his arguments urge the court to
consider the same evidence before the trial court and to view it
differently. For example, he describes many of his custodial
violations as “sporadic defiance of prison rules.” He characterizes
his threat to assault any inmate assigned to him as a cellmate as
“inappropriate” and “merely a rude statement”; his numerous
instances of masturbating in front of female prison staff amount
only to “public indecency” and show that he “needs counseling”;
and he excuses his mutual combat with other inmates as
“common” among prisoners because “prison is a dangerous
environment.” At bottom, he is asking us to reweigh the
evidence, which is beyond our purview. (People v. Covarrubias




                                 16
(2016) 1 Cal.5th 838, 890.) What is more, defendant’s
minimization or denial of responsibility for a crime is itself
probative of current dangerousness, because it reflects a lack of
insight which, in turn, indicates that an inmate remains
dangerous. (See In re Ryner (2011) 196 Cal.App.4th 533, 548-
549; In re Shaputis (2011) 53 Cal.4th 192, 219 [an inmate’s
criminal history and current attitude regarding that criminal
conduct may both be significant predictors of inmate’s future
behavior in the event parole is granted].)
                          DISPOSITION
      The order is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                     ______________________, J.
                                     HOFFSTADT

We concur:


_________________________, Acting P.J.
ASHMANN-GERST


_________________________, J.
CHAVEZ




                                17
