svpa compendium


Cases Decided by the California Supreme Court

People v. Shazier (S208398, 8/18/14)
60 Cal.4th 109
[1.A.] In a sexually violent predator (SVP) trial, the prosecutor committed misconduct by arguing that jurors would face contempt in their communities unless they found defendant to be an SVP; however, the error was harmless. Shazier was convicted of committing sexual offenses against young males on several occasions. While he remained incarcerated, the prosecution filed a petition to have him committed as an SVP. The jury's finding that Shazier was an SVP was overturned on appeal due to the cumulative prejudice from multiple instances of prosecutorial misconduct. The prosecution's petition for review was granted. Held: Reversed and remanded for decision of other appellate issues. Under the SVP Act, defendants serving a sentence may be referred for a civil commitment upon conclusion of their prison term (Welf. & Inst. Code, 6600, et seq.). The prosecution must prove beyond a reasonable doubt that because of a mental disorder, it is likely (i.e., there is a substantial danger or risk) that the defendant will engage in acts of sexual violence if released. During argument in Shazier's SVP trial, the prosecutor told jurors they "would face disapproval and contempt from their family, friends, and community unless they found defendant to be an SVP." Defense objections to the argument were overruled. This was error. It was misconduct to attempt to influence the jury by citing public opinion or public reaction and to ask them to consider the social consequences they would face if they did not Shazier is an SVP. However, given the strong evidence that Shazier met the SVP criteria, the instructions given and the fact the comments were relatively isolated in a lengthy argument, the error was not prejudicial.

It was also arguably misconduct for the prosecutor to insinuate the defendant had committed other, undisclosed crimes. In discussing the predictive reliability of tests assessing the risk that Shazier would re-offend, the prosecution experts suggested the assessment might understate the risk because they only measure charges and convictions, and do not take into account the many sex offenses that are uncharged and unreported. In his testimony, Shazier denied he had committed offenses other than those for which he had been prosecuted. In argument, the prosecution, over objection, implied that Shazier had committed other offenses that went unreported. This was arguably misconduct because it is doubtful the prosecution had a proper basis to imply that Shazier had committed other crimes. However, it was harmless. The court also disagreed with the Court of Appeal's determination that the prosecutor committed seven other instances of prosecutorial misconduct during closing arguments.


Reilly v. Superior Court(S202280, 8/19/13)
57 Cal.4th 641
[4.A., 4.B.] Petitioner's SVP recommitment was wrongly set aside where doctors evaluated him under an invalid assessment protocol, but there was no finding of material error. Reilly was committed as a sexually violent predator (SVP) and, in 2008, the Department of Corrections and Rehabilitation sought his recommitment. Two doctors evaluated him under the applicable assessment protocol and concluded that he was still an SVP. A recommitment petition was filed. While the petition was pending, the assessment protocol used in the evaluations was determined to be invalid and the doctors conducted updated evaluations under a new emergency protocol that was adopted in 2009. They again concluded that Reilly was an SVP. In March 2010, Reilly asked the trial court to cancel his trial, conduct new evaluations, and hold a new probable cause hearing in light of In re Ronje (2009) 179 Cal.App.4th 509, which concluded that alleged SVPs who had been evaluated under the invalid 2007 protocol were entitled to entirely new evaluations and a new probable cause hearing based on them. The court granted the motion, new evaluations were conducted, and both doctors concluded that Reilly no longer met the criteria for commitment as an SVP. Reilly then sought dismissal of the commitment petition. The trial court denied the dismissal, and Reilly filed a petition for writ of mandate. The appellate court granted the writ petition, holding that dismissal was required because the third evaluations of Reilly did not meet the requirements of section 6601, subdivision (e) or (f), no petition could be filed without two concurring evaluations, and the trial court lacked jurisdiction to conduct further proceedings. The Supreme Court granted the prosecutor's petition for review and reversed. The trial court was not required to dismiss the commitment proceedings under these circumstances. Instead, an SVP must show that any fault that occurred under the assessment protocol created a material error. The court disapproved Ronje to the extent it omitted the materiality requirement. The 2007 and 2009 SVPA assessment protocols differ and courts should decide how they might affect a particular evaluation on the merits of each case. Here, Reilly was found to be an SVP under the new protocol, so it is clear that the 2007 protocol error did not materially affect the outcome of his probable cause hearing.


People v. Gonzales (S191240, 3/18/13)
56 Cal.4th 353
[5.B.] In a trial under the Sexually Violent Predator Act (SVP), admission of defendant's therapy records and therapist's testimony, under the dangerous patient exception of Evidence Code section 1024, was error, although harmless under the Watson standard. As a condition of parole following conviction of Penal Code section 288, subdivision (a), appellant was required to attend outpatient psychological evaluation and treatment. In 2006, he was arrested for parole violations and, while in custody, SVP proceedings were initiated. Over appellant's objection that psychological treatment records and testimony of the psychotherapist were protected under the psychotherapist-patient privilege, the prosecution obtained the records and testimony. The trial court determined that the prosecution was entitled to them under the dangerous patient exception to the privilege. The Supreme Court noted that the privilege is not absolute and when a therapist providing treatment to a parolee concludes that the patient is a danger to himself or others and disclosure is necessary to prevent the threatened danger, despite the psychotherapist-patient privilege, the therapist may testify in an SVP proceeding. Here, however, the trial court's conclusion that the dangerous patient exception applied was based solely on the prosecution's conclusory offer of proof that the records and testimony of the therapist would show that the therapist believed appellant presented a danger, and no actual proof was presented. Because appellant was a parolee and the therapy was required as a condition of parole, his expectation of privacy was reduced, particularly insofar as the state's legitimate and substantial interest in the SVP proceeding. Accordingly, the erroneous admission of the records and the testimony were evaluated under the Watson standard. Here, it was found that it was not reasonably probable that a more favorable result would have been reached had the records and testimony been excluded.


In re Lucas (S181788, 3/5/12)
50 Cal.4th 802
[4.B.] The regulatory definition of "good cause" to hold a defendant beyond his/her release date pending the filing of an SVP petition is invalid. However, the BPH's reliance on the regulation is upheld based on good faith. In two consolidated cases the court addressed what showing must be made to postpone the filing of an SVP petition beyond the defendant's scheduled release date, in order to allow completion of the SVP evaluation. An SVP petition must be filed while a defendant is in lawful custody, i.e., before the defendant's expected release date or while subject to a statutory 45-day hold. (Welf. & Inst. Code, 6601.3). The "good cause" required for a 45-day hold is defined by California Code of Regulations, title 15, section 2600.1, subdivision (d) as "some evidence" that the defendant is likely to engage in sexually violent predatory conduct. "That regulation is deficient" because it "links good cause to the wrong showing" the regulation allows good cause to be shown based on the fact that the defendant may be an SVP rather than a justification for the delay in the filing of an SVP petition beyond the defendant's release date. However, there was no "indication of negligent or intentional wrongdoing by correctional authorities" and the BPH's reliance on the regulation was "excusable as a good faith mistake of law." In Sharkey the Court of Appeal's judgment reversing dismissal of the SVP petition was affirmed; in Lucas, the denial of a habeas corpus petition affirmed. [Note: the companion case was S182355 (People v. Superior Court (Sharkey).]


Moore v. Superior Court (S174633, 8/19/10)
50 Cal.4th 802
[1.A., 3.B., 4.B.] “Due process does not require mental competence on the part of someone undergoing a commitment or recommitment trial under the SVPA.” While criminal defendants have a constitutional right not to be tried while mentally incompetent, SVP procedings are not criminal in nature, and there are different due process rights are afforded under these proceedings. The strong interest of the government in protecting the public by confining and treating sexually violent predators would be substantially impeded by delaying or avoiding treatment of such individuals because mental problems make the individual incompetent to stand trial.


People v. Castillo (S171163, 5/24/10)
49 Cal.4th 145
[4.B.] A stipulation limiting appellant's SVP recommitment to a two-year term was upheld under the doctrine of judicial estoppel. When Jessica's Law was on the ballot, the Los Angeles District Attorney and Public Defender entered into a stipulation that pending SVPA recommitments petitions, including appellant's, would be for two years instead of indeterminate terms as provided by the proposed legislation. After the effective date of Jessica's Law, a jury returned verdicts finding appellant continued to qualify as an SVP, and the trial court committed him pursuant to the terms of the stipulation. After appellant appealed, the Attorney General asked the court to make the two-year commitments indeterminate terms on the basis that the two-year term violated Jessica's Law because appellant's SVP trial had occurred after the effective date of the amendment. The Court of Appeal converted the commitment to an indeterminate. Applying the doctrine of judicial estoppel, the Supreme Court reversed. The Court found it significant that in the amended version there was no mention of or provision for recommitment petitions, and so it was possible that appellant would be able to avoid recommitment altogether. In light of the uncertain state of the law when the Los Angeles County District Attorney and Public Defender stipulated that only the two-year commitment term would be sought, and in light of the parties' evident intent in signing the agreement to avoid the unwarranted dismissal of long-pending SVP petitions, the stipulation should be enforced under the judicial estoppel doctrine. Enforcement of the stipulation would promote the goals of the doctrine, namely maintaining the integrity of the judicial system and protecting appellant and others similarly situated from opposing counsels' unfair strategies.


People v. McKee (S162823, 1/28/10)
47 Cal.4th 1172
[1.A, 1.B, 1.D.] Prop. 83's amendments to the SVPA allowing indefinite commitments do not violate due process or ex post facto principles. But, since it appears SVPs are similarly situated to other groups subject to civil commitments for equal protection purposes, the People must justify why SVPs can be subject to disparate treatment.


People v. Allen (S148949, 7/28/08)
44 Cal.4th 843
[1.E.] A defendant in a sexually violent predator proceeding has a right under the California and the federal Constitutions to testify despite counsel's decision that he or she should not testify. And the denial of the right to testify is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18.


In re Smith (S145959, 3/24/08)
42 Cal.4th 1251
[3.A.] Can a proceeding to commit a defendant as a sexually violent predator be maintained if the conviction on which the defendant was serving a sentence at the time that the sexually violent predator proceedings were initiated has been subsequently reversed on appeal? Held: No. The court found persuasive arguments on both sides, but adopted the statutory interpretation in favor of appellant.


In re Lemanuel C. (S144515, 5/24/07)
41 Cal.4th 33
[1.A; 4.] The extended detention scheme under Welfare and Institutions Code section 1800 satisfies the due process and equal protection clauses of the state and federal constitutions. Before the minor's term in the California Youth Authority had expired, his term was extended pursuant to section 1800. Before that term expired, the prosecutor filed a second section 1800 petition to extend his civil confinement. The petition alleged that appellant "would be physically dangerous to the public because of his mental...deficiency, disorder, or abnormality." The trial court granted the petition, finding beyond a reasonable doubt that appellant would be a physical danger as alleged, and that he had "serious difficulty in controlling his behavior within the meaning of Kansas v. Crane." Following the affirmance of his extended detention by the appellate court, appellant petitioned for review, contending that section 1800 violated his right to due process of law because it does not expressly require a finding that there was "a serious and well-founded risk that he would reoffend if not committed." The Court disagreed and affirmed the judgment of the Court of Appeal. The statute's requirements that the person be physically dangerous to the public because of his deficiency and that the deficiency causes the person to have serious difficulty controlling his dangerous behavior adequately limit the applicability to youthful offenders whose deficiency causes them to be physically dangerous if not recommitted. A further finding of a risk of reoffending is not required to preserve the statute's constitutionality. Nor is there a violation of equal protection principles. Youth Authority wards are distinctly different from adult offenders. Although section 1800 is a civil commitment statute, the Legislature enacted the adult civil commitment statutes with different purposes in mind than the purpose of section 1800.


People v. Yartz (S117964, 12/5/05)
37 Cal.4th 529
[3.C.3.] "We must decide whether a 1978 conviction based on a nolo contendere, or no contest, plea may serve as a predicate prior conviction in a civil commitment proceeding under the Sexually Violent Predators Act (SVPA or Act). (Welf. & Inst. Code, §§ 6600 et seq.) Before its 1982 amendment, Penal Code section 1016, subdivision (3), provided that a defendant's nolo contendere plea "may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based." (Stats. 1976, ch. 1088, § 1, p. 4931.) The issue is whether an SVPA proceeding is a "civil suit" for purposes of this former subdivision. Held: "...we conclude that an SVPA civil commitment proceeding is a special proceeding of a civil nature, and not a "civil suit" under Penal Code section 1016, subdivision (3). As such, defendant Norman Yartz's 1978 conviction for child molestation may be used as a predicate prior conviction to support his SVPA civil commitment. (§ 6600, subd. (a)(1).)  Thus, we reverse the judgment of the Court of Appeal, which held to the contrary.”


In re Howard N. (S123722, 2/24/05)
35 Cal.4th 117
[4.C.] A clinical psychologist testified that defendant was dangerous, i.e., that defendant's recent behaviors of exposing himself along with a self-report of violent rape fantasies suggested that defendant, due to an untreated sexual disorder, continued to present an imminent danger to his community. The issue before the Court was whether the extended detention scheme under Welfare and Institutions Code section 1800, et seq. violated due process because it did not expressly require a finding that defendant's mental deficiency, disorder, or abnormality caused serious difficulty in controlling behavior. The Court concluded the extended detention scheme should be interpreted to contain such a requirement in order to preserve its constitutionality. Because the jury was not instructed on this requirement, and there was little evidence defendant's mental abnormality caused him serious difficulty controlling his behavior, defendant was entitled to a new commitment proceeding. (Linnéa Johnson, CCAP Staff Attorney)


People v. Leal (S114399, 8/5/04)
33 Cal.4th 999
[3.C.] Appellant was convicted of two violations of Penal Code section 288, subdivision (b)(1). The jury was instructed according to CALJIC 10.42 that the term "duress" as defined by the statute means a direct or implied threat of force, violence, danger, hardship or retribution. On appeal, appellant argued that the trial court erred by defining duress to include a direct or implied threat of hardship. The Court of Appeal affirmed, declining to follow the contrary holding in People v. Valentine. The Supreme Court granted review to resolve the conflict, and in this opinion affirmed. The 1993 amendments to the rape and spousal rape statutes, which deleted the term "hardship" from the definition of duress, did not alter the previously existing definition of duress as used in section 288, subdivision (b)(1), which did, and continues to, include a threat of hardship. The Legislature specifically altered the definition of rape and spousal rape; had it intended for this definition to also apply to other sex offenses, it could easily have said so. Including hardship in the definition of duress does not make the definition overly vague.


People v. Williams (S107266, 8/21/2003)
31 Cal.4th 757
[6.] The Supreme Court determines that the a separate "control" instruction is not constitutionally necessary under Kansas v. Crane (2001) 534 U.S. 407. By its express terms, the SVPA limits persons eligible for commitment to those few who have already been convicted of violent sexual offenses against multiple victims ( § 6600, subd. (a)(1)), and who have "diagnosed mental disorder[s]" (ibid.) "affecting the emotional or volitional capacity" (id., subd. (c)) that "predispose[ ] [them] to the commission of criminal sexual acts in a degree constituting [them] menace[s] to the health and safety of others" (ibid.), such that they are "likely [to] engage in sexually violent criminal behavior" (id., subd. (a)(1)). This language inherently encompasses and conveys to a fact finder the requirement of a mental disorder that causes serious difficulty in controlling one's criminal sexual behavior. The SVPA's plain words thus suffice "to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." (Kansas v. Crane, at p. 413.)


People v. Roberge (S094627, 2/6/2003)
29 Cal.4th 979
[3.C.2.] The Supreme Court determines the meaning of the term “likely” as used in section 6600, subdivision (a), describing the findings that the trier of fact must make at trial to determine whether the convicted sex offender, after serving the prison term, should be committed to a state mental hospital as a sexually violent predator. The Court concludes that the phrase “likely [to] engage in sexually violent behavior” in the trial phase means “that the person is ‘likely’ to reoffend if, because of a current mental disorder which makes it difficult or impossible to restrain violent sexual behavior, the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.” (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922, original italics.) This is the same definition this Court applied to the word “likely” in section 6601, subdivision (d) [the initial evaluation phase by two mental health experts] (Ghilotti, at p. 922) and the same that it applied to the word “likely” in section 6602, subdivision (a) [pertaining to the superior court probable cause hearing] (Cooley v. Superior Court (2002) 29 Cal.4th 228).


Cooley v. Superior Court (S094676, 11/25/2002)
29 Cal.4th 228
[2.C.] What are the scope and standards applicable to a probable cause hearing under the SVPA law? The hearing requires the superior court to determine whether a reasonable person could entertain a strong suspicion that the petitioner has satisfied all the elements required for a civil commitment as an SVP. The phrase "likely to engage in sexually violent predatory criminal behavior upon . . . release" requires the superior court to determine whether the potential SVP presents a serious and well-founded risk of committing sexually violent criminal acts that will be of a predatory nature, and that the superior court must consider the offender's amenability to treatment when making this determination.


People v. Hurtado (S082112, 8/22/2002)
28 Cal.4th 1179
[3.C.2.][4.C.] Resolving a question left open in People v. Torres (2001) 25 Cal.4th 680, 686, footnote 2, the Court held here that before a defendant can be committed or recommitted under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq. (SVPA)), the trier of fact must find, beyond a reasonable doubt, that the defendant is likely to commit sexually violent predatory behavior upon release. Thus, the judge or jury trying the case must determine not only whether the defendant is likely to "engage in sexually violent criminal behavior" (§ 6600, subd. (a)), but also whether that behavior is likely to be directed "toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (§ 6600, subd. (e).)


People v. Superior Court (Ghilotti) (S102527, 4/25/2002)
27 Cal.4th 888
[3][4] A petition seeking the commitment or recommitment of a sexually violent predator cannot be filed unless two mental health professionals designated by the Director under statutory procedures have agreed, by correct application of statutory standards, that the person "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence absent appropriate treatment and custody. The statutory standard is met if, because of a mental disorder, the person currently presents a substantial danger - a serious and well founded risk - of criminal sexual violence unless maintained in custody. The statute does not , however, require an evaluator to determine whether there is a better than even chance of new criminal sexual violence. An evaluator's conclusion that one does not meet the criteria is legally erroneous if it stems from a conclusion that although the person presents a well-founded risk of reoffense if free without conditions, the evaluator cannot say the risk exceeds 50 percent. An evaluator's recommendation is also invalid if there appears a reasonable probability that it was influenced by the evaluator's legal error including misinterpretation of the "likely to reoffend" standard. The recommendation of an evaluator is subject to judicial review for legal error, and if the court finds no legal error, the court shall deem the evaluation valid and dispose of the petition accordingly. If there is legal error on the face of the report, the court shall direct the evaluator to prepare a new report applying the correct standards. Therefore, Ghilotti's case was remanded to the superior court to vacate the order dismissing the petition and for further proceedings.


People v. Otto (S088807, 7/23/01)
26 Cal.4th 200
[1.D.][5.C.] The Court concluded that under Welfare and Institutions Code section 6600, subdivision (a)(3), the details of predicate offenses in sexually violent predator proceedings may be proven by the admission of multiple hearsay. This statute does not contravene appellant's due process right to confrontation. (Petn. Rehrg. den. 9/12/01.)


People v. Vasquez (S085584, 7/5/01)
25 Cal.4th 1225
[3.C.3.c.] One of appellant's qualifying SVPA convictions was a Texas conviction for child sexual abuse which had been vacated under a Texas probation statute similar to Penal Code section 1203.4. The Court of Appeal held that the vacated conviction could not be relied upon in an SVPA proceeding, and the prosecution appealed. Here, the California Supreme Court reversed the conviction of the Court of Appeal. The order made under the Texas probation statute did not expunge the record or render legally nonexistent the criminal conviction. By terms of the statute itself, a conviction can be made known in future criminal proceedings and used in child care facility licensing. The statute merely restores the civil rights of the convicted person. Therefore, a conviction set aside upon completion of probation may support invocation of civil restrictions that are imposed for the public's protection rather than for punishment. The SVPA requires only that the defendant "has been convicted" of sexually violent offenses. Appellant fit the definition, despite the mitigation of punishment following probation.


People v. Cheek (S083305, 6/21/01)
25 Cal.4th 894
[4.] Under the Sexually Violent Predators Act (SVPA), a defendant is entitled to an annual review of his mental condition. The superior court must hold a "show cause" hearing under Welfare and Institutions Code section 6605, to determine whether probable cause exists to discharge the defendant. At issue in this case was the meaning of the phrase "show cause hearing" as used in section 6605. The Supreme Court here upheld the Court of Appeal's decision in this case, determining that the defendant has a right to call witnesses and to cross-examine the state's witnesses at the hearing, disapproving the Court of Appeal's contrary decision in People v. Herrera (1998) 66 Cal.App.4th 1149.


Albertson v. Superior Court (People) (S085899, 6/4/01)
25 Cal.4th 796
[1.D.][5.D.] In a prosecution under the Sexually Violent Predators Act (SVPA), the district attorney obtained an order requiring petitioner to undergo updated mental health evaluations, and granting the district attorney access to petitioner's treatment records. The Court of Appeal reversed, and the Supreme Court granted review. After review was granted, the Legislature passed urgency legislation which amended key provisions of the SVPA including authorization of updated interviews and evaluations as well as access to treatment records. The Supreme Court held that the new provisions applied to this case. It is evident from the language of the amendments and their legislative history that the Legislature intended to address the issues raised in this litigation.


People v. Torres (S079575, 5/21/01)
25 Cal.4th 680
[3.D.] [7.] Under the Sexually Violent Predators Act (SVPA), the trier of fact need not make a finding that the defendant's prior crimes are "predatory acts" in order to find that he is a sexually violent predator. The statute requires that in order to be a sexually violent predator, the offender must have been convicted of a sexually violent offense. There is no requirement that the act be a predatory act, and the language of the statute is unambiguous. Even assuming that appellant is correct in his assertion that the legislative intent was to provide confinement for those who are likely to commit future predatory crimes, the Legislature has not chosen to effectuate that purpose by requiring the trier of fact to determine whether the predicate felonies involved predatory behavior.


Hubbart v. Superior Court (People) (S052136, 1/21/99)
19 Cal.4th 1138
[1.A.][1.B.][1.D.] The Sexually Violent Predators Act (SVPA) does not conflict with due process, equal protection, and ex post facto principles. Hubbart was a convicted felon with a long history of violent sex offenses. Prior to his release from prison on the most recent offense, the state sought his commitment under Welfare and Institutions Code section 6600 et. seq., the Sexually Violent Predators Act. Hubbart demurred to the commitment petition, and the trial court overruled the demurrer. The Court of Appeal denied Hubbart's petition for writ of prohibition. Hubbart then pursued his constitutional challenge to the law in the California Supreme Court, which affirmed the Court of Appeal's judgment. [1.A.] The definition of "diagnosed mental disorder" is not overbroad. Citing Kansas v. Hendricks (1997) 521 U.S. 346, the California Supreme Court held that due process does not restrict the manner in which the underlying mental impairment is statutorily defined. The statute clearly requires the trier of fact to find that a sexually violent predator is dangerous at the time of commitment, and nothing in Hendricks mandates a commitment scheme that requires the trier of fact to pinpoint the time at which future injury is likely to occur if the person is not confined. The United States Supreme Court has consistently upheld commitment schemes authorizing the use of prior dangerous behavior to establish both present mental impairment and the likelihood of future harm. It is not a violation of due process to involuntarily confine a person for mental health reasons without providing a "realistic opportunity to be cured." There is no constitutional right of treatment for persons involuntarily confined as dangerous and mentally impaired, at least where they cannot be successfully treated. To conclude otherwise would obligate a state to release certain mentally ill and dangerous individuals because they cannot be successfully treated. [1.B.] The Sexually Violent Predators Act (SVPA) does not deny equal protection of the law because even if persons committed under it are similarly situated to other persons subject to civil commitment, no disparate treatment occurs under the relevant statutory provisions. [1.D.] Because the Sexually Violent Predators Act (SVPA) does not impose "punishment," it does not implicate ex post facto concerns. The SVPA is designed to ensure that the committed person does not remain confined any longer than the time during which he suffers from the mental abnormality rendering him dangerous.

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