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United States District Court, Northern District of California

January 9, 2003


The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge.


Oscar Torres Arboleda ("petitioner"), a California prisoner proceeding pro se, filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After petitioner amended the petition, the Court ordered respondent to show cause why the petition should not be granted on the basis of the seven cognizable claims in the original and amended petitions.*fn1 Respondent has filed an answer supported by a memorandum and exhibits, contending that the petition should be denied. Petitioner has filed a traverse.


On October 13, 1982, at approximately 8:20 p.m., Erne Sebero ("Sebero") was shot seven times and killed near the intersection of 25th Avenue and 23rd Street in Oakland, California.

A neighbor, Kevin Gordon ("Gordon"), testified that he was at home at the time and heard an argument in front of his house. He saw a black or Hispanic man walk up to the passenger side of a yellow Ford Mustang and fire three to four shots into the car. The shooter ran up 23rd Street, and the victim got out of the Mustang and fell to the ground. Another neighbor, Daphne Muse ("Muse"), testified that she lived on 23rd Street, about three to four hundred feet from the intersection with 25th Avenue. She heard a shot, and saw from her window a man standing at a fence with his arm raised and holding a gun. She saw the man shoot a person lying prone on the street three times. She also saw a small, compact brown car, perhaps a Pinto or Chevette, nearby; there was a black woman in the driver's seat and a toddler in her lap. She saw the shooter get into the car and drive away. A third neighbor, Javier Madrigal, testified that he was walking by the intersection when he heard gun shots. He saw the driver and his passenger get out of a small yellow car, and then chase after the car when it started rolling backwards. The passenger fell to the ground, and a black man between the ages of 18 and 25 ran up with a gun; the man on the ground waved his arms and said, "Hey man, wait a minute." The gunman fired four or five shots at the man on the ground from about two feet away and then ran up 23rd Street.

Officer Enoch Olivas arrived at the scene and saw Sebero on the ground, alive but covered with blood. He also saw a yellow, two-door Mustang. Police evidence technicians found petitioner's fingerprints on the Mustang's right front fender and the door to the gasoline tank. One of the technicians testified that the age of the prints could not be determined, but that prints on the exterior of a car begin to deteriorate almost immediately because they are exposed to weather.

Sergeant Burham Matthews ("Matthews") testified that he interviewed petitioner's girlfriend, Rena Walton ("Walton"),*fn2 on October 21 and again on November 8, when he arrested her as an accessory after the fact. She initially told Matthews that she did not know anything about the killing, and that she and petitioner had been together at home at the time. After Matthews told her that he did not believe her, she told him that on the evening of the incident she had borrowed her mother's Vega and driven petitioner until they saw Sebero in his car. Petitioner got out of the Vega with a gun in his waistband, fired many shots at the victim, and returned to the Vega. Petitioner told her that he shot Sebero, and Walton drove him to the train station where he took a train to Southern California. Walton explained to Matthews that she initially lied about petitioner and his whereabouts because she did not want petitioner to be arrested.

At trial, Walton testified that her statements implicating petitioner were all lies. She testified that she lived with various family members, including her five-year-old son and her cousins Michael McAdoo ("McAdoo") and Anthony Williams ("Williams"). According to Walton, McAdoo and Walton both had access to the Vega, and Williams had an argument with Sebero about money. She also testified that petitioner and Sebero were friends.

Another neighbor at the scene of the shooting, Charles Lucas ("Lucas"), testified for the defense. Lucas stated that he was working in his front driveway when he heard some people arguing. He then saw a purple Vega stop next to a white or yellow Mustang; someone jumped out of the passenger's side of the Vega and began arguing with the passenger of the Mustang. The Vega passenger pulled the passenger from the Mustang, yelled at him, and shot him several times. Lucas described the gunman as a heavyset black man more than six feet tall with an unkempt beard, whom he thought he had seen several weeks before trial in West Oakland. Lucas identified Walton's cousin Williams as the Vega driver. Lucas testified that he did not tell the police what he saw because he did not like the police. Gary Hooks of the Oakland Police Department testified that he had spoken briefly with Lucas on the night of the shooting and that Lucas had told him he heard some shots but saw nothing because he was in his backyard. Lucas's mother testified that she had seen her son in the front driveway about fifteen minutes before the shooting.

Another neighbor, Elizabeth Gordon ("Gordon"), testified on rebuttal that she saw a Mustang moving slowly along the street with a man walking next to it. The man approached the passenger's side and fired six shots, and another man fell to the street. Gordon, who was in her own car, slumped down, but she nevertheless saw a short, approximately 5'2", man with bushy hair and a gun in his hand run by her toward East 23rd Street.

On June 3, 1983, a jury in Alameda County Superior Court convicted petitioner of first degree murder. The trial court sentenced him to twenty-five years to life for the murder conviction, and to two additional years for the use of a firearm. The California Court of Appeal affirmed the conviction. Petitioner's subsequent habeas petitions in the Supreme Court of California were denied.


A. Procedural Default

Respondent contends that petitioner's claims are procedurally defaulted because in denying petitioner's claims, the Supreme Court of California cited to In re Swain, 34 Cal.2d 300 (1949), In re Dixon, 41 Cal.2d 756 (1953) and In re Waltreus, 62 Cal.2d 218, cert. denied 382 U.S. 853 (1965), all of which set forth various California procedural bars to habeas review. A federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). "For a state procedural rule to be `independent,' the state law basis for the decision must not be interwoven with federal law." LaCrosse v. Kernan, 244 F.3d 702, 704. "A state law ground is so interwoven if the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed." Id. (internal quotation and citation omitted).

In In re Robbins, 18 Cal.4th 770 (1998), the California Supreme Court stated that prior to 1998 it considered both state and federal constitutional law in determining whether to apply the "fundamental constitutional error" exception to untimely and successive petitions. See Park v. California, 202 F.3d 1146, 1152-53 (9th Cir. 2000) (citing Robbins, 18 Cal.4th at 814 n. 34); La Crosse v. Kernan, 244 F.3d 702, 706-707 (9th Cir. 2001) (citing In re Robbins, 18 Cal.4th at 811-12). Thus, a California court's invocation of the Dixon or Swain rule cannot serve as the basis for a procedural default in federal court, at least when the invocation of the rule occurred before Robbins was decided. See Park, 202 F.3d at 1153 (addressing Dixon rule); La Crosse, 244 F.3d at 706-707 (addressing Swain rule). In the instant case, the California Supreme Court denied petitioner's claims on July 3, 1997, November 6, 1997 and February 2, 1998, respectively, all prior to Robbins. Consequently, the Supreme Court's citation to Dixon and Swain do not procedurally bar federal habeas review. Finally, denial of habeas based on the Waltreus rule does not procedurally bar federal review. See Calderon v. United States Dist. Court for the E. Dist. of Cal., 96 F.3d 1126, 1131 (9th Cir. 1996). Accordingly, petitioner's claims are not procedurally barred and will be considered on their merits.

B. Standard of Review

This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a); Rose v. Hodges, 423 U.S. 19, 21 (1975).

A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (9th Cir. 2000). Habeas relief is warranted, however, only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).

A determination of state law by a state appellate court is binding in a federal habeas action. See Hicks v. Feiock, 485 U.S. 624, 629 (1988). The state's highest court is the final authority on the law of that state. See Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979). Even a determination of state law made by an intermediate appellate court must be followed and may not be "`disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise,'" Hicks, 485 U.S. at 630 n. 3 (quoting West v. American Telephone & Telegraph Co., 311 U.S. 223, 237-38 (1940)), or if that interpretation appears to be an obvious subterfuge to evade consideration of a federal issue. See Mullaney v. Wilbur, 421 U.S. 684, 691 n. 11 (1975).

C. Legal Claims

1. Ineffective Assistance of Appellate Counsel

Petitioner claims that his appellate counsel provided ineffective assistance because he failed to argue that Walton's testimony was admitted in violation of California's marital privilege laws. The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal. See Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). A defendant must show that counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. See Miller, 882 F.2d at 1434 & n. 9 (citing Strickland, 466 U.S. at 688, 694).

California law recognizes a marital privilege in two sections of the Evidence Code. Section 970 provides a spouse the privilege against testifying against his or her spouse; § 980 provides a spouse the privilege against disclosing any confidential communications with his or her spouse. At trial, petitioner moved under section 980*fn3 to suppress statements made by petitioner to Walton, on the ground that prior to the trial he and Walton had married in the State of Nevada. The trial court conducted a hearing on the validity of this marriage. At the hearing, the prosecution presented evidence that, prior to her marriage to petitioner, Walton had married Stanley Walton in 1978 in Alameda County. The prosecution also presented a certificate from the Alameda County Clerk that the marriage had not been dissolved. Walton testified that Stanley Walton had told her they were divorced, but that she had never been served with any dissolution papers. Under California law, Walton's marriage to petitioner is void as bigamous, and her testimony is not subject to the marital privilege, if she was previously married and the previous marriage had not been dissolved. See People v. Glam, 13 Cal.App.2d 528, 532 (1936). The prosecutor had the burden to show the prior marriage and the fact that it was not dissolved in the counties where the former spouse might have resided. See Marsh v. Marsh, 790 Cal. 560, 567 (1926) Cal. Evid. Code 917. The trial court concluded that the evidence showed Walton's prior marriage had not been dissolved, and therefore her marriage to petitioner was void as bigamous. Consequently, the trial court found there was no marital privilege precluding the admission of Walton's communications with petitioner.

Petitioner contends that appellate counsel should have asserted on appeal that Walton's testimony violated California Evidence Code §§ 970 and 980. Counsel's failure to present this claim on appeal did not violate petitioner's constitutional rights, however, because it is a very weak claim. The "weeding out" of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. See Miller v. Keeney, 882 F.2d at 1434 (citations omitted). Consequently, appellate counsel ordinarily meets an objective standard of competence and causes his client no prejudice where he declines to raise a weak issue. See id. United States District Judge. The evidence before the trial court convincingly established that Walton's prior marriage to Stanley Walton had not been dissolved in Alameda County, the only county Stanley was known to have resided in, and that Walton had never been served with dissolution papers. The prior marriage voided Walton's marriage to petitioner as bigamous, and, in the absence of a valid marriage, §§ 970 and 980 of the California Evidence Code did not apply. Challenging the trial court's admission of Walton's testimony would be the kind of weak claim that counsel was well-advised to "weed out." Accordingly, the failure to raise a marital privilege claim did not violate petitioner's constitutional right to effective assistance of appellate counsel.

2. Confrontation Clause

Petitioner also claims that the admission of Walton's out of court statements to the police impinged on his right to cross-examine her under the Sixth Amendment's Confrontation Clause. The Confrontation Clause of the Sixth Amendment provides that in criminal cases the accused has the right to "be confronted with witnesses against him." U.S. Const. amend. VI. A primary interest secured by the Confrontation Clause is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315 (1974)..

Petitioner concedes, as the record shows, that he had the to cross-examine Walton when she testified. He contends, however, that if he cross-examined her about petitioner's statements to her about having killed Sebero, he would be waiving his marital privilege as to those confidential, marital communications. Therefore, according to petitioner, he was forced to choose between exercising his Confrontation Clause right to cross-examine Walton on the one hand, and protecting his privileged marital communications on the other. Petitioner claims that the inability to cross-examine Walton without adverse consequences to his marital privileges impinged on his Confrontation Clause rights.

The Court disagrees. First, while the Confrontation Clause does protect the right to cross-examine adverse witnesses, it does not guarantee that such cross-examination will be completely free and unfettered by adverse consequences to the defendant. See e.g., Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (holding Confrontation Clause does not prevent trial judge from imposing reasonable limits on cross-examination). Moreover, there were no adverse consequences based on the marital privilege because, as discussed above, there was no marital privilege applicable to petitioner's communications with Walton. There being no marital privilege to protect, petitioner could fully exercise his Confrontation Clause right to cross-examine Walton without risking waiver of any privileged communication. Accordingly, petitioner's claim that his rights under the Confrontation Clause were violated is without merit.

3. Defense Closing Argument

Petitioner claims that by sustaining certain objections to defense counsel's closing arguments about the fingerprint evidence, the trial court effectively precluded petitioner's presentation of his defense in closing argument, in violation of the Sixth Amendment. The Sixth Amendment affords an accused in a criminal trial the right to present a defense. Chambers v. Mississippi, 410 U.S. 284, 294 (1973). The right to make a closing argument is "a basic element of the adversary factfinding process in a criminal trial." Herring v. New York, 422 U.S. 853, 858 (1975). A trial court's refusal to allow defense counsel to make a closing argument also constitutes a violation of the defendant's Sixth Amendment right to the effective assistance of counsel. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000).

At trial, the theory of defense as argued by petitioner's counsel was that petitioner was not the shooter. Defense counsel's explanation for why petitioner's fingerprints and handprints appeared on the victim's Mustang was that petitioner had touched the car at some time prior to the shooting. During closing argument, defense counsel stated that the location of petitioner's fingerprints on the car "are consistent with [petitioner's] putting gasoline into the car," and "are consistent with [petitioner's] changing a tire." The trial court sustained the prosecution's objections on the grounds that no evidence had been presented during trial establishing that the fingerprints and handprints were consistent with putting gasoline into the car or changing a tire. A review of the record indicates that while there was evidence that petitioner's fingerprints were found on the side of the car near the gasoline door and on one of the fenders, there was no testimony or other evidence that these prints were in fact consistent with changing tires or putting gasoline into the car. In sustaining the objections, the trial court admonished defense counsel, "You got to argue from the evidence. There's certain inferences you can make, but you can't make up the evidence." Defense counsel thus was permitted to make the argument to the jury that it was reasonable to infer that petitioner had put gasoline in the car or changed a tire, he simply was not permitted to state that there was evidence that the location of petitioner's fingerprints was consistent with those activities. Moreover, elsewhere in closing argument, defense counsel was allowed to argue explicitly the theory that petitioner's fingerprints could have resulted from petitioner's touching the Mustang on a prior occasion.*fn4 Accordingly, the trial court's ruling on the prosecution's objections during petitioner's closing argument did not violate petitioner's right to present his theory of defense.

4. Voluntary Manslaughter Instruction

Petitioner claims that the trial court violated his constitutional rights by denying his request for a jury instruction on voluntary manslaughter. He claims that an instruction on voluntary manslaughter was appropriate because there had been evidence that the shooter had argued with Sebero just prior to shooting.

The failure of a state trial court to instruct on lesser included offenses in a non-capital case does not ordinarily present a federal constitutional claim. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000); Windham v. Merkle, 163 F.3d 1092, 1105-06 (9th Cir. 1998); Turner, 63 F.3d at 819 (citing Bashor v. Riley, 730 F.2d 1228, 1240 (9th Cir.), cert. denied, 469 U.S. 838 (1984)); cf. Beck v. Alabama, 447 U.S. 625, 638 (1980) (holding failure to instruct on lesser included offense in capital case violates due process if evidence presented to support the instruction). There is a limited exception to this general rule where the lesser included offense is necessary to safeguard "the defendant's right to adequate jury instructions on his or her theory of the case." Solis, 219 F.3d at 929.*fn5 Because this exception has not been announced by the United States Supreme Court, it is unclear whether it is "clearly established" federal law, upon which habeas relief under § 2254(d)(1) may be granted. Even if the decision in Solis reflects an assessment that the exception is in fact "clearly established," it does not apply to petitioner's claim in this case. Petitioner concedes that he did not present a voluntary manslaughter defense. His theory of defense was that he was not the killer, not that he was the killer but that he acted in a "heat of passion," which constitutes voluntary manslaughter.*fn6 Consequently, the issuance of an instruction on voluntary manslaughter was not necessary to safeguard petitioner's right to present his theory of the case, and the trial court's failure to instruct the jury on the lesser-included offense of manslaughter did not violate petitioner's constitutional rights.

5. Insufficient Evidence

Petitioner claims that there was insufficient evidence to support his conviction. The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, which, if proven, entitles him to federal habeas relief. Jackson v. Virginia, 443 U.S. 307, 321-24 (1979). A federal court reviewing collaterally a state court conviction does not determine whether the court itself is satisfied that guilt beyond a reasonable doubt was established. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992). The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. See Jackson, 443 U.S. at 324. The "prosecution need not affirmatively `rule out every hypothesis except that of guilt,'" and the reviewing federal court "`faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326). The existence of some small doubt based on an unrebutted but unsupported hypothesis of innocence is not sufficient to invalidate an otherwise legitimate conviction. See Taylor v. Stainer, 31 F.3d 907, 910 (9th Cir. 1994).

Here, the evidence presented was sufficient to support a reasonable jury's finding that petitioner was guilty of murder beyond a reasonable doubt. Walton told the police that she saw petitioner get out of the car with a gun and shoot Sebero many times. She also told the police that petitioner had told her that he killed Sebero. Walton did initially tell the police that petitioner had not killed Sebero, and at trial she recanted her earlier statement implicating petitioner. The jury reasonably could have concluded, however, that Walton was simply attempting to protect petitioner, whom she had tried to marry, and that she had been telling the truth when she implicated him. Moreover, Walton's account of driving petitioner to the crime scene was corroborated by Muse, who testified that before the shooter entered the getaway car, she saw a black woman sitting in the driver's seat, with a young child on her lap. Walton is a black woman who at the time had a young child. Lucas, another witness, described the shooter's car as a Vega, which is the make of Walton's mother's car. There was additional evidence implicating petitioner on which the jury reasonably could have relied. Petitioner left the San Francisco Bay Area shortly after the killing, and his fingerprints were found on the victim's car. Admittedly, there could be an innocent explanation for this evidence — petitioner could have left the Bay Area for another reason and he could have touched the Mustang on a some prior occasion. Although the prosecution's evidence did not rule out such innocent events, the explanations were at best speculative because there was no evidence showing an innocent purpose for petitioner's leaving the area, nor was there evidence of any other occasion on which he might have touched the car. It was reasonable for the jury to find the flight and fingerprint evidence inculpatory, particularly given the absence of evidence as to an innocent explanation. See e.g., Taylor, 31 F.3d at 910 (finding sufficient evidence to support conviction where three innocent hypotheses regarding petitioner's fingerprints, though unrebutted by the prosecution, were unsupported by evidence). As explained above, the mere existence of innocent explanations for the evidence in this case does not render the evidence insufficient or the verdict unconstitutional.

Petitioner also claims that, in addressing the sufficiency of the evidence claim, the California Court of Appeal mischaracterized the record regarding fingerprint evidence. Specifically, the Court of Appeal stated that Madrigal testified the shooter had chased after the Mustang when it began to slide downhill and, as a result, the fingerprints on the fender and gas cap establish petitioner as the shooter who chased and tried to grab the car. In fact, Madrigal testified that it was Sebero and the Mustang's passenger, not petitioner, who chased after the Mustang. Petitioner is thus correct that the Court of Appeal mischaracterized the record on that point. This Court's conclusion as to the insufficiency of the evidence, however, remains unchanged. Even if the location of petitioner's fingerprints on the Mustang does not implicate petitioner in the fashion described by the Court of Appeal, there was, as discussed above, other evidence sufficient to persuade a reasonable jury beyond a reasonable doubt that petitioner had murdered Sebero.

6. Jury Instruction on Flight

Petitioner claims that by reading a jury instruction regarding evidence of flight, the trial court decreased the prosecution's burden of proving guilt beyond a reasonable doubt. The Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. See In re Winship, 397 U.S. 358, 364 (1970).

In accordance with CALJIC No. 2.02, the trial court instructed the jury that:

[t]he flight of a person immediately after the commission of a crime or after he is accused of a crime that has been committed is not sufficient in itself to establish his guilt; but it is a fact, which, if p roved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.
RT 460-61. Petitioner argues the giving of this instruction constituted error because, according to petitioner, there was no evidence that petitioner fled, and that the instruction effectively told the jury to find petitioner had fled and that petitioner's flight was consistent with guilt. Again, the Court disagrees. First, there was undisputed evidence that petitioner left for Southern California shortly after the shooting. Second, the challenged instruction does not tell the jury that petitioner fled or even that there was evidence of flight. Rather, the instruction is carefully worded to read that flight evidence "if proved, may be considered." Finally, the instruction does not require or even suggest that the jury infer guilt from evidence of flight. Rather, the instruction admonished the jury to consider any such evidence in light of all of the other evidence and that it was for the jury to determine how much weight to give it. Consequently, the flight instruction did not serve to lower the prosecution's burden of proof in this case and, accordingly, petitioner is not entitled to relief based on that instruction.


For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

All pending motions are terminated.

The clerk shall close the file.



Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DENIED.

All pending motions are TERMINATED.

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