PEOPLE v. CORREIA

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Jesse James CORREIA et al., Defendants and Appellants.

No. D020584.

Decided: July 24, 1995

Karen R. Di Donna, La Jolla, Kevin C. McLean and Russell S. Babcock, under appointment by the Court of Appeal, San Diego, for defendants and appellants. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Keith I. Motley and Douglas P. Danzig, Deputy Attys. Gen., for plaintiff and respondent.

Jesse James and John Correia, who are brothers, appeal their convictions of assault (Pen.Code,2 § 240).   Their cousin, Barry Correia, appeals his convictions of assault (§ 240) and battery (§ 242).3  On appeal, the Correias contend the evidence is insufficient to support their convictions, the court failed to adequately instruct the jury about considering multiple defendants, the court erred in refusing requested jury instructions and giving instructions on lesser included offenses and erred in requiring the Correias to pay restitution to the victim's health care provider.   We affirm.

INTRODUCTION

This case involves a brawl at the wedding reception for Jesse and his bride, Rosa Bonilla.   Each witness, as in the story Rashomon,4 told a different version of what occurred.

What seems to be agreed is that about 9:45 p.m., John and his girlfriend, Maria Bonilla (the bride's sister) were yelling at each other by Maria's car.   Maria's cousin, Michael Acosta, came up to the couple and told John not to hurt Maria.   A fight broke out, involving many people.   When the brawl was over, Michael had serious injuries, including a broken palate, upper jaw and nose.   None of the Correias similarly suffered a serious injury.

FACTS **

DISCUSSION

I–IV **VRestitution

The Correias contend the court erred in requiring them to pay restitution to the Kaiser Health Plan which paid for Michael's medical treatment.   They contend a probation condition of restitution under section 1203.04 is improper because Kaiser was not a direct victim.

Section 1203.04 provides, in pertinent part:

“(a)(2) In every case where a person is convicted of a crime and is granted probation, the court shall require, as a condition of probation, that the person make restitution as follows:

“(A) To the victim, if the crime involved a victim.   Payments shall be made to the Restitution Fund to the extent the victim has received assistance [from that fund].

“(B) To the Restitution Fund, if the crime did not involve a victim.”

This section was enacted by the Legislature to implement a constitutional provision adopted by the voters which provides restitution for “all persons who suffer losses as a result of criminal activity.”  (Cal. Const., art. I, § 28, subd. (b), emphasis added;  People v. Crow (1993) 6 Cal.4th 952, 956, 26 Cal.Rptr.2d 1, 864 P.2d 80.) 12

Among the issues which arose following the enactment of section 1203.04 was whether a court could require a defendant to pay restitution, as a condition of probation, to a victim which was not an individual such as a governmental entity or corporation.  (See e.g., People v. Narron (1987) 192 Cal.App.3d 724, 237 Cal.Rptr. 693;  People v. Calhoun (1983) 145 Cal.App.3d 568, 572, 193 Cal.Rptr. 394;  People v. Wardlow (1991) 227 Cal.App.3d 360, 370–371, 278 Cal.Rptr. 1;  People v. Beck (1993) 17 Cal.App.4th 209, 219–222, 21 Cal.Rptr.2d 250;  see also People v. Crow, supra, 6 Cal.4th 952, 26 Cal.Rptr.2d 1, 864 P.2d 80.)

In 1994, the Legislature amended section 1203.04, adding subdivision (j) which provides:

“Nothing in this section shall prevent a court from ordering restitution to any corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.”

 We must interpret the statute to give effect to the Legislative intent, beginning with the words used and construing them in light of the Legislature's intent and in a manner which, “when applied, will result in wise policy rather than mischief or absurdity.  [Citation.]”  (Beaty v. Imperial Irrigation Dist. (1986) 186 Cal.App.3d 897, 902, 231 Cal.Rptr. 128;  Massey v. Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 674, 681, 20 Cal.Rptr.2d 825, 854 P.2d 117;  Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 354, 257 Cal.Rptr. 356.)   Further, since section 1203.04 was enacted to implement the constitutional provision, we construe it in a manner consistent with the constitutional provision and, if possible, in a manner so that it is constitutional.  (Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 260, 5 Cal.Rptr.2d 545, 825 P.2d 438.)

 The constitutional provision broadly mandates restitution to “all persons who suffer losses as a result of criminal activity” (Cal. Const., art. I, § 28, subd. (b), emphasis added);  it does not restrict restitution to the direct victims of criminal activity nor exclude entities other than natural persons, such as an insurance company or governmental agency from receiving restitution.

It has been held that “[a] flexible interpretation of the term ‘victim’ best addresses the purpose of [section 1203.04].  [Citation.]”  (People v. Foster (1993) 14 Cal.App.4th 939, 951, 953, 18 Cal.Rptr.2d 1.)   In People v. Foster, supra, 14 Cal.App.4th 939, 18 Cal.Rptr.2d 1, the court concluded the term “victim” included an insurance company which had reimbursed a “direct” victim for losses suffered in a burglary.   While Foster was decided before the 1994 amendment which added subdivision (j) to section 1203.04, it directly dealt with the issue of whether an insurance company was a “victim” entitled to restitution.

The court began by examining the purpose served by ordering restitution as a condition of probation.  “When restitution is imposed as a condition of probation under section 1203 et seq., rehabilitation of the criminal is the primary goal of restitution.  ‘Implicit in the concept of rehabilitation is the need to first deter criminal activity.’   Courts have generally found an order requiring the defendant to compensate the victim to be a deterrent to future criminal activity.”  (People v. Foster, supra, 14 Cal.App.4th 939, 950, 18 Cal.Rptr.2d 1, citations omitted.)

The Foster court rejected the defendant's argument that restitution to an insurance company should not be permitted as a condition of probation because a restitution order to an insurance company is not proper when probation is denied.   The Foster court noted the differences in the statutory schemes and their definitions of “victims.”   The court pointed out the statutory scheme governing restitution when probation is denied contains a detailed definition of the term “victim” which limits the term to a natural person “who sustains injury or death as a direct result of a crime,” to specified family members and to individuals who pay for the crime victim's direct medical or burial expenses.  (Former Gov.Code, § 13960, subd. (a).) 13  In contrast, the statutory scheme governing restitution when probation is granted, contains no such restrictive definition of a “victim.”  (People v. Foster, supra, 14 Cal.App.4th at p. 953, 18 Cal.Rptr.2d 1.)

The Foster court contrasted the purpose of restitution when probation is denied to when restitution is ordered as a condition of probation.   The court noted in the former situation, “[a]lthough rehabilitation of the criminal is an ancillary purpose of a restitution award ․, the primary purpose is to compensate California residents who suffer loss as a result of crime.”   (People v. Foster, supra, 14 Cal.App.4th at p. 950, 18 Cal.Rptr.2d 1.)   The Foster court had “no difficulty harmonizing the statutes;”  “[t]he different objectives of the probation statutes and the victim reimbursement provisions of the Government Code justify different applications of the term ‘victim.’ ”   (People v. Foster, supra, 14 Cal.App.4th 939, 953, 18 Cal.Rptr.2d 1.)

In concluding the statutes governing restitution as a condition of probation permitted an order of restitution to an insurance company, the Foster court looked to People v. Narron, supra, 192 Cal.App.3d 724, 237 Cal.Rptr. 693, where the court upheld a restitution order to a county when probation was granted.   The Narron court reasoned:

“[T]he policies of these provisions [governing restitution as a condition of probation] favor a definition which includes the government where it suffered loss flowing from a defendant's criminal conduct.   Including the government as a potential ‘victim’ accords with the court's discretion to employ probation conditions which ensure ‘that amends ․ be made to society for the breach of the law, ․’ (Pen.Code, § 1203.1.)   Moreover, the concept of restitution embodies not only the notion that people who suffer loss as a result of criminal activity should be compensated for those losses [citation], but also a perception of the value of restitution as a ‘deterrent to future criminality’ [citation], and ‘to rehabilitate the criminal.’  [Citation.]  Both aims are furthered by imposing a restitution condition in appropriate cases whether or not the victim is an individual.”  (People v. Narron, supra, 192 Cal.App.3d 724, 732, 237 Cal.Rptr. 693.)

The Foster court concluded “[a] flexible interpretation of the term ‘victim’ best addresses the purpose of the statute” governing restitution as a condition of probation and this flexible definition could include a non-natural person, i.e., an insurance company.  (People v. Foster, supra, 14 Cal.App.4th 939, 953–954, 18 Cal.Rptr.2d 1.)   Finally, the Foster court observed:

“In our view, it would create a greater anomaly to apply the scheme apparently envisioned by Foster, under which a defendant's responsibility to make restitution for property he has stolen would depend upon whether the victim had obtained insurance against the loss.   This result would ignore that objective of probation conditions which is to deter further criminal activity by requiring the defendant to bear the consequences of his criminal activity.”  (People v. Foster, supra, 14 Cal.App.4th 939, 952, 18 Cal.Rptr.2d 1.)

In sum, the Foster court reasoned the term “victim” should be construed broadly in the context of restitution as a condition of probation to include non-natural persons or entities, including an insurance company since a restitution order to such a victim could further the objectives of deterring future criminal activity and thus, rehabilitating the defendant.

The court in People v. Sexton (1995) 33 Cal.App.4th 64, 39 Cal.Rptr.2d 242, decided after the 1994 amendment to section 1203.04 was added, concluded the 1994 amendment was intended to preclude restitution to an insurance company unless it was a “direct” victim of the crime.   The Sexton court reversed a probation condition which ordered restitution to an insurance company.   The Sexton court explained:

“The Legislature's reference to ‘direct’ victims manifestly incorporates the well-established dichotomy existing in the law which distinguishes between ‘direct’ and ‘indirect’ victims for purposes of restitution.   A ‘direct’ victim is the ‘object’ of the crime committed.  [Citation.]  By authorizing restitution orders limited to entities which are ‘direct’ victims, the Legislature necessarily intended to exclude entities which are ‘indirect’ victims from such authorization.   As the Franco court observed, ‘[T]he Legislature knows how to define and include indirect victims if it chooses to do so.’  (People v. Franco [1993] 19 Cal.App.4th [175] at p. 184, fn. 17 [23 Cal.Rptr.2d 475].)   Thus, an insurer who has incurred expenses solely by virtue of a contractual duty to indemnify the direct victim is not itself an ‘object’ of the crime and hence not a direct victim.   It cannot, therefore, be the recipient of a section 1203.04 restitution order unless it is itself a direct victim of criminal conduct.”  (People v. Sexton, supra, 33 Cal.App.4th 64, 70–71, 39 Cal.Rptr.2d 242, fn. omitted.)

The Correias urge us to follow the reasoning of the Sexton court.   We decline to do so.14

We first observe that the Sexton court's interpretation restricting restitution to direct victims conflicts with the broad constitutional provision which contains no such limitation but directs restitution for “all persons who suffer losses as a result of criminal activity.”  (Cal. Const., art. I, § 28, subd. (b).)

Second, we believe the Legislature's intent in amending section 1203.04 in 1994 was not to narrow restitution awards but to expand them.   At the same time the Legislature added subdivision (j), they also struck the requirement restitution be subject to a defendant's ability to pay and substituted a provision that the defendant's ability to pay was but one factor for the court to consider in ordering restitution.   The Legislature also provided restitution fines for misdemeanor offenses and made restitution orders enforceable as civil judgments.   The stated purpose of the amendments was “to expand the ability of the victims to receive restitution, both directly and from the restitution fund.”  (Assem. Com. on Pub. Safety, Analysis of Assem. Bill No. 3169 (1993–1994 Reg Sess.) as amended Apr. 4, 1994, comments par. 1.)

Specifically, as to subdivision (j) of section 1203.04, the legislative analysis of the proposed amendment states:

“Existing law defines ‘victim’ for the purposes of the Restitution Fund to include, among others, any resident of the state, or military personnel and their families stationed in the state who is a person who sustains injury or death as a direct result of a crime.

“This bill would specify that nothing in these provisions regarding restitution shall prevent the court from ordering restitution to any corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of crime.”  (Sen. Rules Com., Office of Sen. Floor Analyses, Analysis of Assem. Bill No. 3169 (1993–1994 Reg. Sess.) as amended Aug. 12, 1994, analysis par. 9.)

This statement, as well as the language itself, reflects a clear legislative intent to ensure restitution to a broad class of victims, i.e., to ensure restitution not only to individuals but also to entities such as corporations or governmental agencies who have suffered losses as a result of criminal activity.

The “when ․ a direct victim” language of subdivision (j) of section 1203.04 does not, as the Sexton court concluded, necessarily lead to a conclusion the Legislature intended to permit courts to order restitution as a condition of probation to non-individuals such as a corporation only when the non-individual is a “direct” victim.   As we pointed out above, prior to the amendment, the law was unsettled as to whether a corporation or governmental entity, even if a direct victim, could receive restitution.   The legislative history shows a concern that non-individuals not be excluded from receiving restitution and an intent to clarify the law.   There is no indication in the legislative history or in the language of the amendment itself that the Legislature was concerned with the separate issue of “direct” versus “indirect” victims.   If the Legislature had intended to prohibit a court from conditioning probation on a restitution order to a corporation or governmental entity which was an “indirect” victim, the Legislature easily could have so provided by stating restitution to such an entity was permitted “only when a direct victim” or by stating the court shall not order restitution to such an entity when it was an “indirect” victim.   The Legislature did not so limit restitution orders.   We decline to follow the Sexton case and import a restriction into the statute which the Legislature did not impose, particularly when such a restriction would conflict with the constitutional provision governing victim restitution and the evident legislative intent to expand, rather than restrict, victim restitution.

Finally, we note the effect of the Sexton court's decision is not to prohibit a restitution order which results in reimbursement of losses suffered by an insurance company but only to require the payment to be made indirectly, e.g., first to the victim and then to the insurance company.   As the Sexton court recognized, “it makes no sense to excuse a defendant from paying restitution simply because of the fortuity that the victim has insurance coverage.”  (People v. Sexton, supra, 33 Cal.App.4th 64, 72, 39 Cal.Rptr.2d 242.)   The Foster court applied a similar rationale noting it would be anomalous

“to make restitution for property he has stolen ․ depend upon whether the victim had obtained insurance against the loss.   This result would ignore that objective of probation conditions which is to deter further criminal activity by requiring the defendant to bear the consequences of his criminal activity.”  (People v. Foster, supra, 14 Cal.App.4th 939, 952, 18 Cal.Rptr.2d 1.)

We agree with Sexton (and Foster ) that “it makes no sense to excuse a defendant from paying restitution simply because ․ the victim has insurance coverage,” (People v. Sexton, supra, 33 Cal.App.4th at p. 72, 39 Cal.Rptr.2d 242), but we also conclude it makes no sense to prohibit an order that restitution paid be directly to an insurance company which has reimbursed the “direct” victim for losses resulting from the defendant's criminal conduct.   The Sexton approach, in our view, interposes an unnecessary step which could needlessly result in further litigation.   Further, allowing a court to order restitution to an insurance company as a condition of probation can further the goals of rehabilitation.   Ordering restitution directly payable to an insurance company can impress upon a defendant that loss still occurs despite the fact there is insurance available and to ensure the defendant understands the full extent of his criminal activity.

The Correias also contend the restitution order must be reversed because they were not given sufficient notice of the amount of restitution or opportunity to contest the amount of restitution and the court erred in failing to consider ability to pay.  (See People v. Resendez (1993) 12 Cal.App.4th 98, 113–114, 15 Cal.Rptr.2d 575.)

 The probation reports did not specifically list the amount of victim restitution sought, but they did indicate Michael had incurred approximately $10,000 in medical bills which had been covered by insurance.   At the sentencing hearing on January 19, 1994 for John and Jesse, the probation department presented the restitution claims for medications, special foods and lost wages for Michael and Eva totaling $2,026.12 as well as Kaiser's medical costs which totaled $9,371.   John and Jesse objected to the payment of any restitution to Michael, Eva or Kaiser and objected to the amount sought.

The court found the requested restitution to be reasonable and ordered John and Jesse to each pay 121/212 percent of the victim restitution and Barry to pay 25 percent of the restitution subject to subsequent motions by the defense objecting to the amount of restitution.

Barry's sentencing was delayed until February 2, 1994 because he had sustained injuries in an automobile accident.   He did not specifically object to the amount of the restitution but noted “like the other defendants in this case, on the matter of restitution, we feel that there is [an] appealable issue.”

This record indicates the defendants received notice of the amount of the victim restitution and were provided with an opportunity to challenge the amount;  the restitution was provisionally imposed and specifically made subject to any later motions by the defendants challenging the amount ordered.   We find no due process violation here.   The Correias did not avail themselves of their opportunity to contest the amount;  they failed to pursue their opportunity to challenge the amount, as invited by the court, and cannot raise the matter on appeal.  (See People v. Foster, supra, 14 Cal.App.4th 939, 943–944, 18 Cal.Rptr.2d 1;  People v. Blankenship (1989) 213 Cal.App.3d 992, 996–997, 262 Cal.Rptr. 141;  People v. Rivera (1989) 212 Cal.App.3d 1153, 1160, 261 Cal.Rptr. 93.)

 As to the ability to pay issue, the record indicates the court had before it information regarding the defendants' current employment and information from which it could determine the defendants ability to earn.   Not only do we presume the court considered this information before ordering restitution, but also we note none of the defendants objected the award was improper because of an inability to pay either at the sentencing hearing or by making a motion for a hearing on the amount of restitution.   Under these circumstances, we conclude the appellants waived the issue and may not now raise it on appeal.  (See People v. Menius (1994) 25 Cal.App.4th 1290, 1297, fn. 3, 31 Cal.Rptr.2d 15.)

 Barry also contends the court's restitution order violates his right to have a jury determine civil damages and is an impermissible intrusion into the civil arena.   He argues because California is a comparative liability jurisdiction, the actual damages may be significantly less than the amount ordered by the court.15  Initially, we note Barry has waived these issues.   He neither requested a jury trial below nor challenged the amount of the restitution.   Moreover, Barry's arguments have been previously rejected by the courts which have held a defendant is not entitled to a jury trial on the amount of restitution (see People v. Baumann (1985) 176 Cal.App.3d 67, 80, 222 Cal.Rptr. 32) and a restitution order as a condition of probation which has a sufficient nexus to the crime and serves to rehabilitate the offender and deter future criminality, as is the case here, is proper and not a mere substitute for a civil action (see People v. Richards (1976) 17 Cal.3d 614, 620, 131 Cal.Rptr. 537, 552 P.2d 97;  People v. Lent (1975) 15 Cal.3d 481, 486, 124 Cal.Rptr. 905, 541 P.2d 545).

DISPOSITION

The judgment is affirmed.

I agree with the majority's conclusion that the court properly ordered the Correias to pay restitution to the Kaiser Health Plan.   Kaiser, by virtue of its contractual duty to provide Michael with medical services, stands in Michael's shoes and should be accorded the status of a direct victim.   The Correias should not be relieved from paying restitution due to the fortuity that Michael is a member of a health plan.   I write separately, however, because I believe the opinion is overly broad in its holding that all individuals or entities who have suffered losses as a result of criminal activity are entitled to restitution as a condition of a defendant's probation, thus implying all indirect victims are so entitled.   In the absence of any clear legislative authorization to order restitution to indirect victims, I would not go that far.

As noted by the court in People v. Sexton (1995) 33 Cal.App.4th 64, 71, 39 Cal.Rptr.2d 242, “[b]y authorizing restitution orders limited to entities which are ‘direct’ victims, the Legislature necessarily intended to exclude entities which are ‘indirect’ victims from such authorization.”  “[T]he Legislature knows how to define and include indirect victims if it chooses to do so.”  (People v. Franco (1993) 19 Cal.App.4th 175, 184, fn. 17, 23 Cal.Rptr.2d 475.)   Indeed, in the recent amendments to Penal Code 1 section 1203.04, the Legislature included a minor victim's parents or guardians and a victim's immediate surviving family among those who, while not direct victims, are entitled to restitution in certain circumstances.  (§ 1203.04, subds. (d)(3) and (d)(4) [wages or profits lost by minor's parent, parents, guardian or guardians while caring for injured minor or due to time spent as witness or in assisting police or prosecution];  § 1203.04, subd. (h)(2) [“victim” includes immediate surviving family of actual victim].)   If “victim” is as broad as the majority suggests, it would have been an idle act for the Legislature to have carved out these exceptions.   Further, in expanding the term “victim” to corporations and other legal or commercial entities in section 1203.04, subdivision (j), the Legislature expressly required those entities be “direct” victims of a crime.  (See People v. Sexton, supra, 33 Cal.App.4th at p. 70, 39 Cal.Rptr.2d 242.)

My belief that restitution orders should not be expanded to indirect victims is best described by the example of an arsonist who, in the process of setting fire to a particular business, consequently causes neighboring businesses to lose profits as a result of closed-off access from fire trucks and other emergency and rescue vehicles.   Under the broad definition of “victim” suggested by the majority, all neighboring business owners would be entitled to restitution because they suffered losses as a result of criminal activity.   The Legislature clearly did not intend such a result.

By failing to restrict restitution to direct victims as specified by the Legislature, we run the risk of an already overburdened probation department being directed to ascertain the identities of any indirect victims who may also be entitled to compensation for their losses.   At the same time, we pose an onerous task for the trial courts who will be confronted with a myriad of claims by those who, however remotely connected to the crime, believe they have suffered compensable losses.   I would not open such a Pandora's box.

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise indicated..  FN2. All statutory references are to the Penal Code unless otherwise indicated.

3.   For the sake of convenience, we shall use first names in this opinion.   We intend no disrespect.

4.   Rashomon, a play by Fay and Michael Kanin based on a story by Ryunosuke Akutagawa, Random House, New York (1959).

FOOTNOTE.   See footnote 1, ante.

12.   The full text of article I, section 28, subdivision (b) of the California Constitution provides:  “It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer.“Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss, unless compelling and extraordinary reasons exist to the contrary.   The Legislature shall adopt provisions to implement this section during the calendar year following adoption of this section.”   (Emphasis added.)

13.   At the time Foster was decided, Government Code, section 13960 provided, in pertinent part:  “(a) ‘Victim’ means any of the following residents of the State of California, or military personnel and their families stationed in California:“(1) A person who sustains injury or death as a direct result of a crime.“(2) Anyone legally dependent for support upon a person who sustains injury or death as a direct result of a crime.“(3) Any member of the family of a victim specified by paragraph (1) or any person in close relationship to such a victim, if that member or person was present during the actual commission of the crime, or any member or person herein described whose treatment or presence during treatment of the victim is medically required for the successful treatment of the victim.“(4) Any member of the family of a person who sustains injury or death as a direct result of a crime when the family member has incurred emotional injury as a result of the crime.   Pecuniary loss to these victims shall be limited to only medical expenses, mental health counseling expenses, or both, of which the maximum award shall not exceed ten thousand dollars ($10,000).“(5) In the event of a death caused by a crime, any individual who legally assumes the obligation, or who voluntarily pays the medical or burial expenses incurred as a direct result thereof.”

14.   Our decision is of course controlled by the facts before us.   Here we consider only the right to restitution of Kaiser, a medical provider which, while not the immediate object of the crime is on these facts closely related to Michael, the “direct victim,” and which seeks compensation from the Correias for the cost of services provided to Michael.

15.   Barry also contends the court's order resulted in exposing him to even greater civil damages and a potential windfall for Eva and Michael and Kaiser because the court expressly stated that no part of the restitution order could be considered as an accord and satisfaction to any civil action.   He argues Eva, Michael and Kaiser might sue him and attempt to obtain a double recovery.   This argument is mere speculation.

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

KREMER, Presiding Justice.

HUFFMAN, J., concurs.