People v. Valliant

Filed 10/14/20 (review denied 2/17/21; reposted with Supreme Court order and statement)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
G058568
Plaintiff and Respondent,
(Super. Ct. No. 14WF3768)
v.
OPINION
ALEXANDER IRWIN VALLIANT,
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Derek Guy Johnson, Judge. Affirmed.
Donald E. Landis, Jr. and Laura Vavakin for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos and
Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
Sharon Petrosino, Public Defender (Orange) and Sara Ross, Assistant
Public Defender for Orange County Public Defender as Amicus Curiae on behalf of
Defendant and Appellant.
* * *
Alexander Irwin Valliant petitioned to recall his sentence and seek
resentencing pursuant to Penal Code section 1170.91, subdivision (b),1 a statute which
authorizes such relief for military veterans who suffer from military-related trauma and
substance abuse, and who did not have those factors considered as mitigating factors
when they were originally sentenced. The court denied his petition on the basis that
section 1170.91, subdivision (b)(1)(B) (subdivision (b)(1)(B)) authorizes resentencing
relief only for persons who were sentenced before January 1, 2015. On its face, this
provision does not apply to Valliant who was sentenced in March of 2015.
Valliant, along with amicus curiae from the Orange County Public
Defender’s Office (amicus), argues the trial court erred in its interpretation of subdivision
(b)(1)(B). They contend that when properly understood, the subdivision extends
resentencing relief to all veterans whose military-related trauma was not considered at
their initial sentencing, without regard to when that sentencing took place. Valliant
suggests this broad construction is the only reasonable interpretation of subdivision
(b)(1)(B), while amicus claims the language is “poorly drafted” and ambiguous, and
urges us to resolve the purported ambiguity by examining the statute’s purpose and
legislative history.
We affirm the order. Subdivision (b)(1)(B) unambiguously specifies that
its resentencing relief is limited to cases in which “[t]he person was sentenced prior to
January 1, 2015.” It further specifies that “[t]his subdivision shall apply retroactively,
whether or not the case was final as of January 1, 2015” (italics added). There is no
ambiguity. In the face of such an unequivocal statutory limitation, we have no authority
to rewrite the statute even if we sympathize with the contention.
1
All further statutory references are to the Penal Code.
2
FACTS
Valliant was charged with second degree robbery (count 1; §§ 211, 212.5,
subd. (c)); criminal threats (count 2; § 422, subd. (a)); carrying a dirk or dagger (count 3;
§ 21310); carrying a loaded firearm in public (count 4; § 25850, subd. (a) & (c)(7)); and
driving on a suspended license (count 5; Veh. Code, § 14601.1, subd. (a)), all arising out
of a single incident in September 2014.
In March 2015, after an unsuccessful effort to transfer the case to the
Veteran’s Court, Valliant negotiated a disposition with the District Attorney. Valliant
agreed to plead guilty to second degree robbery, and to admit he personally used a
firearm during the commission of the robbery. In exchange, the District Attorney agreed
to dismiss four remaining charges. The parties also agreed that Valliant would serve a
prison term of 12 years.
Consistent with the terms of this agreement, the trial court sentenced
Valliant to 12 years in prison. The sentence consisted of the low term of two years for the
robbery, plus 10 years for personal use of a firearm.
Valliant apparently suspected he suffered from post-traumatic stress
disorder (PTSD) at the time he entered his guilty plea and was sentenced, but it was not
until 2017 that the Department of Veterans Affairs (VA) verified his PTSD and opioid
abuse disorder, both stemming from his military service.
In April 2019, Valliant filed a petition for resentencing pursuant to
sections 1170.91, 12022.5, subdivision (c), and 1170, subdivision (b). He asserted he
was entitled to relief because his PTSD and substance abuse, both related to his military
service, were not considered as a factor in mitigation when the court sentenced him for
his earlier crimes. He contended that subdivision (b)(1)(B) applied not only to cases
where ‘“[t]he person was sentenced prior to January 1, 2015,”’ but also applied to cases
‘“whether or not the case was final as of January 1, 2015.”’
3
The trial court disagreed with Valliant’s interpretation of the statute,
concluding that section 1170.91, subdivision (b)(1)(A) and (B), limit the resentencing
remedy to cases in which the challenged sentence was imposed before January 1, 2015.
Because Valliant was sentenced after that date, the court denied his petition without
otherwise addressing its merits.
DISCUSSION
Valliant contends the court erred by interpreting subdivision (b)(1)(B) as
providing no remedy for petitioners such as him, who were sentenced on or after
January 1, 2015, but who were nonetheless unable to assert their military-related trauma
or substance abuse as a required mitigating factor at sentencing.2 Because that contention
raises a pure issue of law, our review is de novo. (People v. Prunty (2015) 62 Cal.4th 59,
71.)
The original version of section 1170.91 became effective on January 1,
2015, and required sentencing courts to consider any trauma, substance abuse, and mental
health problems caused by a defendant’s service in the United States military as
mitigating factors weighing in favor of a low-term sentence. (§ 1170.91, subd. (a),
enacted by Stats. 2014, ch. 163, § 2.) This statute was in effect when Valliant was
sentenced, pursuant to the negotiated disposition, in March of 2015.3
2
In framing the issue this way, we acknowledge Valliant’s suggestion that
his ability to rely on these mitigating factors at sentencing was hampered by the fact that
his military-related PTSD and substance abuse were not officially recognized by the VA
until years later. However, we need not address the contention as we conclude that
neither the delayed confirmation of Valliant’s military-related impairments, nor the fact
that his sentence was imposed in accordance with a negotiated disposition, is relevant in
determining whether the resentencing remedy is available to him.
3
Valliant contends the statutory language identifying these required
mitigating factors—later designated as subdivision (a) when section 1170.91 was
amended in 2018—provides “independent, self-executing” authority for recall of his
sentence. However, he fails to explain how this language authorizes the recall of his
4
In 2018, the Legislature amended section 1170.91, designating the original
language as subdivision (a), and adding subdivision (b), which created a remedy for
qualifying defendants who were sentenced before section 1170.91 went into effect. Thus,
section 1170.91, subdivision (b), provides as follows: “(b)(1) A person currently serving
a sentence for a felony conviction, whether by trial or plea, who is, or was, a member of
the United States military and who may be suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental health problems as a
result of his or her military service may petition for a recall of sentence, . . . to request
resentencing pursuant to subdivision (a) if the person meets both of the following
conditions: [¶] (A) The circumstance of suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental health problems as a
result of the person’s military service was not considered as a factor in mitigation at the
time of sentencing. [¶] (B) The person was sentenced prior to January 1, 2015. This
subdivision shall apply retroactively, whether or not the case was final as of January 1,
2015.” (§ 1170.91, subd. (b)(1)(A) & (B), italics added.)
Hence, as explained in People v. Bonilla-Bray (2020) 49 Cal.App.5th 234,
238, (Bonilla-Bray) “[t]o be eligible for resentencing, a petitioner must meet the
following criteria: [¶] He or she is currently serving a sentence for a felony conviction—
whether by trial or plea (§ 1170.91, subd. (b)(1)); [¶] He or she served in a branch of the
United States military (ibid.); [¶] As a result of his or her service, he or she suffers from
sexual trauma, traumatic brain injury, posttraumatic stress disorder, substance abuse, or
mental health problems (ibid.); [¶] The court did not consider those circumstances as a
sentence. Instead, Valliant relies on what is now subdivision (a) to argue that “[a]t a re-
sentencing hearing, the Superior Court would now have to consider as a mitigating factor
whether [he], as a United States military veteran, was [suffering from military-related
PTSD or substance abuse].” We may agree. Nonetheless, the statute provides no
authority for requiring the hearing Valliant now requests.
5
factor in mitigation at the time of sentencing (id., subd. (b)(1)(A)); and [¶] He or she
was sentenced before January 1, 2015 (id., subd. (b)(1)(B)).” (Italics added.)
Both Valliant and amicus disagree with Bonilla-Bray’s final criterion for
resentencing eligibility, arguing that when properly understood, the resentencing remedy
provided for in subdivision (b)(1)(B) is not restricted to “persons [who were] sentenced
prior to January 1, 2015.” Valliant and amicus acknowledge the first sentence of the
subdivision, granting resentencing relief to those sentenced before January 1, 2015, is
clear on its face. Nonetheless, both suggest that the second sentence of subdivision
(b)(1)(B), which states “[t]his subdivision shall apply retroactively, whether or not the
case was final as of January 1, 2015,” demonstrates that resentencing authority extends to
other cases as well. (§ 1170.91, subd. (b)(1)(B).) We cannot agree.
The rules of statutory construction are well-settled. “Our task in
interpreting a statute ‘is to ascertain and effectuate legislative intent. [Citations.]’
[Citation.] In order to do so, ‘[w]e turn first to the words of the statute themselves,
recognizing that “they generally provide the most reliable indicator of legislative intent.”
[Citations.] When the language of a statute is “clear and unambiguous” and thus not
reasonably susceptible of more than one meaning, “‘“‘there is no need for construction,
and courts should not indulge in it.’”’”’” (People v. Leal (2004) 33 Cal.4th 999, 1007.)
However, rather than focus on the words of subdivision (b)(1)(B), Valliant
argues the fact the second phrase—specifying the subdivision’s retroactive application—
is set apart in a separate sentence from the initial requirement that “[t]he person was
sentenced prior to January 1, 2015,” indicates the Legislature intended to “creat[e] two
separate jurisdictional grants.” He concludes the Legislature wanted to “make sure that
all veterans, whether sentenced before or after January 1, 2015, could equally receive its
re-sentencing grant.” But Valliant cites no authority to support this argument. We also
believe the argument is illogical for at least two reasons.
6
First, if we focus solely on the sentence structure of subdivision (b)(1)(B),
rather than its actual words, we conclude Valliant’s interpretation ignores the fact that the
two sentences do not run parallel to each other, as would be expected if they were
intended to operate as alternative grants of jurisdiction over two sets of cases. While the
first sentence applies the resentencing remedy to those veterans whose original
sentencing took place before January 1, 2015, the second sentence makes no similar
provision for any other group of veterans. Rather, what it does—based on the words the
Legislature chose—is define the retroactive effect of section 1170.91’s newly added
resentencing remedy. Since that is a separate subject matter from what is addressed in
the first sentence of subdivision (b)(1)(B), it makes sense to us the Legislature would
choose to separate the two.
Additionally, even if we were to agree the second sentence of subdivision
(b)(1)(B) might reasonably be construed as an attempt to define a separate group eligible
for resentencing relief, the only discernible members of that group would effectively
subsume the group identified in the first sentence—amounting to a judicially construed
exception that would consume the rule. In other words, the only potential “group” we
can extract from the words of the second sentence would be the group of cases defined by
“whether or not the case was final as of January 1, 2015.” (§ 1170.91, subd. (b)(1)(B).)
That “group” would not only include every case involving a person who was sentenced
before January 1, 2015—the scope of cases defined in the first sentence of the
subdivision—it would extend to all cases ever decided in California. Ever. If such
sweeping coverage was the Legislature’s aim, it could have more easily achieved its goal
by eliminating any timing limitations on the court’s resentencing authority—including
the limitation set forth in the first sentence of subdivision (b)(1)(B).
We are obligated to avoid statutory constructions which render other
provisions of the statute superfluous. (People v. Arias (2008) 45 Cal.4th 169, 180 [“‘a
construction that renders a word surplusage should be avoided’”].) The fact that
7
Valliant’s proposed interpretation of the second sentence of subdivision (b)(1)(B) would
render the first sentence surplusage, plus the fact such an interpretation is consistent with
the actual words used, causes us to conclude it is unreasonable.
For similar reasons, we reject Valliant’s contention that subdivision (b)
must be construed in a manner that provides him relief because to do otherwise would
deprive him of due process and equal protection of the laws—thus rendering it
unconstitutional. (See Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828,
846 [“An established rule of statutory construction requires us to construe statutes to
avoid ‘constitutional infirmit[ies]’”].) We cannot construe the law in Valliant’s favor
unless he is able to demonstrate the law is reasonably susceptible of such a construction.
He has failed to do so.
In any event, Valliant’s claim of constitutionally unequal treatment is
unpersuasive. His complaint is based on the notion that if the resentencing option is
offered only to those veterans who were sentenced before January 1, 2015, it unfairly
distinguishes between similarly situated veterans who belatedly discovered their
military-related trauma after sentencing. As he explains, veterans who have belatedly
discovered their mitigating trauma after sentencing, but were sentenced before January 1,
2015, would be entitled to petition for relief under the new subdivision, while those who
have belatedly discovered their trauma, but were sentenced after that date (including
him), are foreclosed. We reject the assertion because we cannot agree those groups are
similarly situated.
Veterans who were sentenced before the original version of section 1170.91
went into effect on January 1, 2015, did not have an incentive to investigate the existence
of military-related trauma or substance abuse because the law did not require those issues
to be treated as mitigating factors in sentencing. However, once the statute went into
effect, veterans were on notice that any military-related trauma or substance abuse would
have to be treated as mitigation. Thus, these issues needed to be investigated prior to
8
sentencing; sentencing should be delayed if necessary, to ensure they had a full and fair
opportunity to present evidence on the point. Adding subdivision (b)(1)(B) to the statute
gave veterans sentenced before January 1, 2015 the same incentive and opportunity to
investigate and present the issue as the original version of the statute had given veterans
sentenced after that date. Such a scheme is not unfair or unequal.
Amicus does not echo Valliant’s claim that the second sentence of
subdivision (b)(1)(B) necessarily creates a separate grant of jurisdiction over a distinct
group of cases. Instead, it argues that “the insertion of the phrase ‘shall apply
retroactively’” in that sentence makes the subdivision as a whole “confusing, and subject
to multiple interpretations”—i.e., that it creates ambiguity with respect to the requirement
that a person must have been sentenced before January 1, 2015. Amicus then suggests
that the ambiguity must be resolved in Valliant’s favor based on legislative history and
the statute’s purpose. However, since we are unpersuaded by amicus’s claim of
ambiguity, we need not address the legislative history and statutory purpose arguments.
Amicus does not explain why statutory language that explicitly defines the
subdivision’s “retroactive effect” would create any ambiguity with respect to a separate
sentence that specifically addresses its substantive scope. Those are distinct matters.
(See In re Estrada (1965) 63 Cal.2d 740, 748 (Estrada) [establishing rule that in the
absence of contrary statutory language, a statute which mitigates punishment will
generally be applied retroactively to all cases not yet final on the date it takes effect].)
The first sentence of subdivision (b)(1)(B) sets forth a substantive
requirement for resentencing relief—that the person must have been sentenced before
January 1, 2015—while the second sentence governs the retroactive effect of the
provision, which authorizes that resentencing relief.4 We consequently reject amicus’s
assertion that the latter sentence creates an ambiguity in the former.
4
This broad retroactivity provision, focusing on the date that section 1170.91
originally went into effect, makes sense. Because the new statute amended existing
9
But even if we were to agree it was proper to interpret the two sentences in
subdivision (b)(1)(B) as addressing a single subject, we would nonetheless conclude that
amicus’s proposed interpretation of their combined meaning is unreasonable. According
to amicus, the combined provision “appears to indicate that individuals sentenced prior to
January 1, 2015, as well as those individuals whose cases are not final as of January 1,
2015, are eligible for resentencing.” However, in addition to ignoring a substantial part
of the second sentence, that interpretation fails to acknowledge that the first phrase
focuses on sentencing dates, while the second phrase focuses on case finality dates.
Having failed to acknowledge that distinction, amicus fails to explain how its
interpretation makes sense.
Amicus also asserts that we are obligated to incorporate the second
sentence of subdivision (b)(1)(B) into our analysis of what the first sentence means
because “stopping the analysis after the first sentence in this subdivision would render the
remaining sentence superfluous and meaningless.” But that assertion begs the question.
It is only if we assume the second sentence is intended solely to illuminate the meaning
of the first sentence—as opposed to having a separate purpose—that it would be rendered
superfluous and meaningless.
As we have explained, the second sentence of subdivision (b)(1)(B)
addresses the retroactive effect of the new subdivision, rather than its substantive scope—
i.e., the category of cases eligible for resentencing relief. Thus, that sentence is in no way
nullified if we confine our analysis of the subdivision’s substantive scope to the first
sentence. By contrast, as we have noted, an attempt to combine both sentences of the
sentencing laws by mandating that a defendant’s military-related trauma be considered as
a mitigating factor, Estrada required that the statute be applied retroactively to all cases
not final on that date. Thus veterans sentenced before January 1, 2015, but whose cases
were not yet final on that date, would still have had the opportunity to seek
reconsideration of their sentences based on section 1170.91.
10
subdivision into a single definition of the category of cases eligible for relief—to the
extent that is possible—would actually nullify the first sentence. That is the result we are
obligated to avoid.
Under these circumstances, we are obligated to enforce the subdivision in
accordance with its clear terms unless we conclude that doing so would lead to “an
absurd result that does not advance the legislative purpose.” (Gray Cary Ware
& Freidenrich v. Vigilant Insurance Co. (2004) 114 Cal.App.4th 1185, 1190; California
School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 340.) This
“‘exception should be used most sparingly by the judiciary and only in extreme cases else
we violate the separation of powers principle of government. [Citation.] We do not sit as
a “super-legislature.’”” (People v. Pecci (1999) 72 Cal.App.4th 1500, 1507.)
In this case, we do not conclude that subdivision (b)(1)(B)’s limitation of
resentencing relief to those veterans who were sentenced before January 1, 2015—the
date section 1170.91 originally went into effect—is an absurd result. By providing a
resentencing remedy to those veterans sentenced before that date, the Legislature ensured
that all veterans were given the opportunity to claim the statute’s mandatory mitigation
benefit.
In closing, we wonder if the Legislature foresaw this result when it passed
section 1170.91. While Valliant’s position here may be unusual, we doubt it is unique.
With that thought in mind, we invite the Legislature to revisit this issue and, if it believes
it is appropriate to do so, to provide Valliant and any other veteran in a similar position,
with statutory relief.
DISPOSITION
The order is affirmed.
11
GOETHALS, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
12
Filed 2/17/21
Court of Appeal, Fourth Appellate District, Division Three - No. G058568
S265734
IN THE SUPREME COURT OF CALIFORNIA
En Banc
________________________________________________________________________
THE PEOPLE, Plaintiff and Respondent,
v.
ALEXANDER IRWIN VALLIANT, Defendant and Appellant.
________________________________________________________________________
The petition for review is denied.
(See separate statement by Liu, J.)
______________________________
Chief Justice
PEOPLE v. VALLIANT
S265734
Concurring Statement by Justice Liu
Alexander Irwin Valliant filed a petition to recall the
sentence for his conviction of second degree robbery and for
resentencing pursuant to Penal Code section 1170.91,
subdivision (b). Since 2015, section 1170.91 has required courts
to consider as a factor in mitigation at sentencing whether “a
defendant convicted of a felony offense is, or was, a member of
the United States military who may be suffering from sexual
trauma, traumatic brain injury, post-traumatic stress disorder
[(PTSD)], substance abuse, or mental health problems as a
result of his or her military service.” (Pen. Code, § 1170.91,
subd. (a); further statutory references are to this code.) In 2018,
the Legislature gave this statute retroactive effect, allowing
military veterans who suffer from such military-related
conditions, and who did not have those circumstances
considered when initially sentenced, to petition to recall the
sentence and be resentenced. (§ 1170.91, subd. (b).)
To be eligible to file such a petition, however, the statute
requires that any such military-related condition “was not
considered as a factor in mitigation at the time of sentencing”
and that “[t]he person was sentenced prior to January 1, 2015.”
(Pen. Code, § 1170.91, subd. (b)(1)(A)–(B).) Valliant was
sentenced in March 2015 and therefore does not meet the latter
requirement. For this reason, the superior court denied his
petition and the Court of Appeal affirmed. (See People v.
Valliant (2020) 55 Cal.App.5th 903.)
1
PEOPLE v. VALLIANT
Liu, J., concurring statement upon denial of review
Yet it is undisputed that Valliant’s military-related
conditions — PTSD and opioid abuse disorder — were not
considered during his sentencing in 2015. In fact, it was not
until 2017 that the United States Department of Veterans
Affairs (VA) verified that his conditions stemmed from his
military service. Thus, Valliant is in the unfortunate position of
not having had his military-related conditions considered at his
initial sentencing while also being ineligible for resentencing
pursuant to section 1170.91, subdivision (b).
I agree with the Court of Appeal that it is unlikely the
Legislature specifically intended this result. (See Valliant,
supra, 55 Cal.App.5th at p. 912 [“[W]e wonder if the Legislature
foresaw this result when it passed section 1170.91. While
Valliant’s position here may be unusual, we doubt it is unique.
With that thought in mind, we invite the Legislature to revisit
this issue and, if it believes it is appropriate to do so, to provide
Valliant and any other veteran in a similar position, with
statutory relief.”].) Indeed, the author of Assembly Bill No. 865
(2017–2018 Reg. Sess.), which made section 1170.91 retroactive,
found it “[u]nfortunate[]” that section 1170.91 “does not apply to
veterans convicted prior to January 1, 2015” and through the
amendment sought to “ensure there is equal treatment of all
veterans, not just those convicted after January 1, 2015.” (Sen.
Com. on Veterans Affairs, Analysis of Assem. Bill No. 865
(2017–2018 Reg. Sess.) as amended Apr. 30, 2018, pp. 4–5.) Yet,
by requiring that the original sentencing occur prior to
January 1, 2015, for an individual to be eligible for
resentencing — irrespective of when it was determined that the
trauma, mental health, or substance abuse conditions were a
result of military service — section 1170.91, subdivision (b) fails
to ensure equal treatment of all veterans.
2
PEOPLE v. VALLIANT
Liu, J., concurring statement upon denial of review
The January 1, 2015 requirement also makes little sense
as a policy matter. With respect to PTSD, for example, the
scientific literature has recognized delayed onset PTSD,
particularly among veterans, where symptoms can take time to
fully manifest. (See, e.g., Yehuda et al., Post-Traumatic Stress
Disorder (Oct. 8, 2015) 1 Nature Reviews Disease Primers 1, 9–
10; Creamer et al., PTSD Among Military Personnel (Apr. 2011)
23:2 Internat. Rev. of Psychiatry 160, 161–162.) And for PTSD
related to sexual trauma, “it may take years for one to recognize
an incident as sexual trauma, and in some cases, a fragmented
memory of the event may delay acknowledgment even more.”
(Kintzle et al., Sexual Trauma in the Military: Exploring PTSD
and Mental Health Care Utilization in Female Veterans (2015)
12:4 Psychological Services 394, 398.) Moreover, it also takes
time for conditions like PTSD to be diagnosed and to
administratively establish a connection to military service.
Although a veteran can file a claim with the VA to establish a
service-connected condition or disability, “there is a tremendous
backlog of claims at VA, and it can take many years for a claim
to work its way through the system.” (Derro, Service-Connected
Disability Claims Before the U.S. Department of Veterans
Affairs: A Brief Tutorial (Feb. 2015) 94:2 Mich. B.J. 26, 28, fn.
omitted.) Thus, a strict time requirement in these
circumstances can lead to arbitrary and inequitable results.
There has been some recognition by the Legislature of the
need to address this issue. Assembly Bill No. 581 (2019–2020
Reg. Sess.), for instance, would have provided relief to veterans
like Valliant. The bill recognized that “even though
Section 1170.91 was in effect starting January 1, 2015, some
defendants may not have benefitted from the change in law
either because some were unaware of the change or because
3
PEOPLE v. VALLIANT
Liu, J., concurring statement upon denial of review
evidence of the service-related trauma was not available or was
unknown at the time of sentencing.” (Sen. Com. on Veterans
Affairs, Analysis of Assem. Bill No. 581 (2019–2020 Reg. Sess.)
as amended Feb. 14, 2019, p. 3.) But that bill never became law,
so I echo the Court of Appeal’s call for renewed legislative
attention to this issue.
LIU, J.
4