Filed 10/31/13 P. v. Lomeli CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B242595

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA359567)
         v.

JOSE ANTONIO LOMELI,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Ronald H. Rose, Judge. Affirmed.


         Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and
Esther P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.




                                                           ******
       Appellant Jose Antonio Lomeli appeals from the judgment entered upon his
conviction by jury of first degree murder (Pen. Code, § 187, subd. (a),1 count 1), and
willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a), count 2).
The jury found true the firearm allegations that a principal personally used a firearm
(§ 12022.53, subds. (b), (e)), personally and intentionally discharged a firearm
(§ 12022.53, subds. (c), (e)), and did so causing death (§ 12022.53, subds. (d), (e)). The
jury also found true the criminal street gang allegation (§ 186.22, subd. (b)(1)(C)). The
trial court sentenced appellant to a mandatory term of 75 years to life in state prison, plus
a life term. The court awarded appellant 1,046 days of actual custody credit.
       Appellant contends (1) there was insufficient evidence to support his convictions,
(2) there was insufficient evidence to support the true finding on the gang allegation, and
(3) he was deprived of his right to due process of law because he was convicted of
“drive-by murder” but was not charged with that offense. Finding no error, we affirm the
judgment.
                                 FACTUAL SUMMARY
Prosecution Case
       The Shooting
       In April 2009, Ivan Valencia moved from East Los Angeles to a house on West
55th Street in Los Angeles. On July 17, 2009, at approximately 10:30 a.m., Juan
Gonzalez drove to Valencia’s house and asked Valencia to help him make deliveries
from his truck. Gonzalez and Valencia were both longtime members of the Temple
Street gang. Valencia pointed to a white car down the street and told Gonzalez it
belonged to a rival gang member with whom he had problems. Valencia got in the
passenger seat and Gonzalez drove westbound on West 55th Street, turned right on South
Hoover Street, and then drove eastbound on West 54th Street. Valencia wanted to stop
for food but Gonzalez could not find a parking space for the truck and continued driving



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


                                              2
to Main Street. As Gonzalez turned westbound on West 55th Street, a white car passed
the truck on the driver’s side and somebody inside the car yelled out. Gonzalez slammed
on the brakes when the car cut him off. Valencia told Gonzalez to get down and said
“it’s that guy from B.M.S.”2 The passenger in the white car stuck out his hand and
Gonzalez heard four or five “pops” as he ducked down. The white car sped off and
Gonzalez saw that Valencia was bleeding from the back of his head and there was also
blood coming from his mouth.
       Los Angeles Police Department (LAPD) Officer Gerald Harden responded to the
shooting. Gonzalez told Officer Harden that a white Chrysler or Dodge car cut him off
and the passenger shot at him. The car was similar to an Intrepid sedan Valencia had
shown him earlier. Officer Harden saw three bullet holes on the windshield and two
bullet holes on the front of the truck. Five nine-millimeter casings were recovered at the
scene. After Gonzalez received medical attention, LAPD Detective Daniel Gersna asked
him about the location where Valencia had earlier pointed out the white car. Gonzalez
directed Detective Gersna to an address on West 54th Street around the block from
Valencia’s house. A white Dodge Intrepid was parked in appellant’s driveway.
Gabriella Daisy Avila, the mother of appellant’s children, was the registered owner of the
vehicle and appellant was listed as a secondary owner. Gonzalez identified appellant as
the shooter when shown a six-pack photographic lineup by Detective Gersna. He said
appellant “look[ed] similar to the guy that shoot (sic) my friend Ivan.”
       Detective Gersna was able to trace the route taken by Gonzalez. Surveillance
videos from three separate liquor stores captured appellant’s Dodge Intrepid following
Gonzalez’s truck. Appellant followed Gonzalez’s truck as it turned right onto South
Hoover Street and east on West 54th Street. The Dodge Intrepid stopped briefly outside
appellant’s house. The front passenger of the vehicle ran inside appellant’s house. The
same passenger reentered the vehicle within 30 seconds and continued along the route
taken by Gonzalez’s truck. The video captured the Dodge Intrepid as it continued to


2      The Barrio Mojados (BM) gang identified itself with the initials B.M.S.

                                             3
follow Gonzalez’s truck along West 54th Street. On July 27, 2009, appellant was
arrested and Detective Gersna conducted a search of his residence. An unexpended nine-
millimeter bullet was found in the rear cargo area of a Chevrolet Tahoe parked in the
driveway at the rear of the residence. The Dodge Intrepid was located in the garage.
Appellant said he had the Intrepid for about four months but it “broke down” when he
first got it and “it [did not] turn.” Detective Gersna testified the Intrepid was started up
and was drivable when towed by police personnel.
       Jeffrey Gutstadt, a forensic pathologist and deputy medical examiner for the Los
Angeles County Department of Coroner, testified that Ivan Valencia died of a gunshot
wound to the head. The bullet entered the left side of the head and perforated the brain.
Fadil Biraimah, a criminalist with the LAPD Scientific Investigation Division, testified
that a nine-millimeter Luger was used in the shooting. The live cartridge found in the
Chevrolet Tahoe during the search of appellant’s residence was found to have been
cycled through the same handgun that was used in the shooting. Appellant’s fingerprints
were found on the rear passenger door of the Dodge Intrepid. Fingerprints belonging to
Avila and Ernesto Valdez, an active member of BM, were found on the driver’s side.
       Gang Evidence
              a.     Temple Street
       LAPD Officer Hugo Ayon was the prosecution’s gang expert on the Temple Street
gang. He was familiar with both the Temple Street and the BM gangs and had testified
numerous times as a gang expert. He testified that common tattoos among Temple Street
gang members include “TST,” an abbreviation for Temple Street, and “1923,” the year in
which the gang was founded. Temple Street and BM were neighboring gangs and
Temple Street gang considered all gangs that bordered their territory to be rivals.
       Gonzalez joined the Temple Street gang in 1992 and had a tattoo of the letters
“TST” on his right hand. Gonzalez had known Valencia for fifteen years. Valencia was
also a member of the Temple Street gang and sported a number of that gang’s tattoos.
       When asked a hypothetical question based on the facts of this case, Officer Ayon
opined that the shooting was committed for the benefit of and in association with a

                                              4
criminal street gang. His opinion was based on the notion that gangs use violence to
establish fear and intimidation to control their territory and a member of a gang was
obligated to take violent action upon contact with a rival gang member. The killing
enhanced the reputation of the gang and the ability of the gang members to commit
further crimes without worry that community members will report them to the police.
Killing a rival gang member would be the ultimate crime for the benefit of the gang
because it demonstrated that one was not afraid to use deadly violence against rivals. Not
only was the shooter’s reputation enhanced but the driver of the vehicle proved to the
gang that he could be trusted to take part in a crime that benefitted the gang.
              b.     Barrio Mojados
       LAPD Officers Gabriel Gonzales and Brandi Pearson had extensive training and
experience in gang enforcement detail and were familiar with BM. Officer Gonzales
testified that the territory controlled by BM included West 54th Street from Vermont
Avenue on the west side to Slauson Avenue on the south and Grand Avenue on the east
side. Temple Street gang members started moving into that territory in the 1990’s and
BM considered them to be their main rivals. BM gang members referred to themselves
as “Wet Town” and were associated with the initials B.M.S. and the numbers four three,
eight two, and five four for the 54th Street clique. Appellant had a tattoo which stated
“Wet Town” on the back of his neck, a “B” and an “M” on his right forearm, and the
numbers “54” on his left wrist.
       Officer Pearson testified that BM’s primary activities included felony vandalism,
street robberies, assault with a deadly weapon, attempted murder and murder. Officer
Pearson testified to the commission of two predicate crimes committed by BM gang
members. Victor Ventura was convicted of murder in 2008, and Lorenzo Gomez was
convicted of possession of a firearm in 2009.
Defense Case
       No evidence was presented on behalf of appellant.




                                              5
                                       DISCUSSION
I.     Appellant’s Convictions for Murder and Attempted Murder
       A.      Contention
       Appellant contends there was insufficient evidence of his actual participation in
the shooting. He argues the evidence was insufficient to sustain his conviction under a
theory that he was an aider and abettor to the shooting and his convictions must therefore
be reversed.
       B.      Relevant Authority
       “The role of an appellate court in reviewing the sufficiency of the evidence is
limited. The court must ‘review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence–that is, evidence
which is reasonable, credible, and of solid value–such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt.’ [Citations.]” (People v. Ceja
(1993) 4 Cal.4th 1134, 1138.)
       If the verdict is supported by substantial evidence, we are bound to give due
deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6
Cal.4th 1199, 1206.) The standard of review is the same in cases where the prosecution
relies primarily on circumstantial evidence. (People v. Bloom (1989) 48 Cal.3d 1194,
1208.) “Reversal on this ground is unwarranted unless it appears ‘that upon no
hypothesis whatever is there sufficient substantial evidence to support [the conviction].’”
(People v. Bolin (1998) 18 Cal.4th 297, 331.)
       C.      Evidence Sufficient
       The prosecutor argued that appellant was guilty of murder and attempted murder
either as the actual shooter or in the alternative as an aider and abettor to the shooting.
The jury was instructed with CALCRIM No. 401, which set forth the elements of an
aider and abettor.3



3     The jury was instructed with CALCRIM No. 401 as follows: “To prove that the
defendant is guilty of a crime based on aiding and abetting that crime, the People must

                                              6
       There is no dispute that appellant was a member of BM and that Valencia was a
member of the Temple Street gang. The gangs were rivals and Valencia lived in BM
territory approximately one block from appellant. On the morning of the shooting,
Valencia pointed out a white car close to his house and told Gonzalez he was having
problems with the gang member who owned the car. Gonzalez testified that the gunfire
that killed Valencia was fired from a white car that looked like the car Valencia had
pointed out earlier. Valencia told Gonzalez to get down because it was the guy “from
B.M.S.” Gonzalez told Officer Harden and Detective Gersna the car was a Dodge
Intrepid and directed Detective Gersna to appellant’s house where the Intrepid was
located. Gonzalez identified appellant from a six-pack photo lineup as the person who
“look[ed] similar” to the shooter. The liquor store surveillance videos captured
appellant’s Dodge Intrepid as it followed Gonzalez’s truck, stopped momentarily at
appellant’s house while the passenger went inside and quickly returned and then followed
Gonzalez’s truck again immediately prior to the shooting. A live nine-millimeter
cartridge found in appellant’s other vehicle was found to have been cycled through the
same handgun as the one that was used in the shooting. Appellant’s fingerprints were
found on the Dodge Intrepid.
       Appellant was identified as a participant in the crime by the eyewitness
identification of Gonzalez and there was substantial circumstantial evidence he was in the


prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that
the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of
the crime, the defendant intended to aid and abet the perpetrator in committing the crime;
[¶] AND [¶] 4. The defendant’s words or conduct did, in fact, aid and abet the
perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he knows
of the perpetrator’s unlawful purpose and he specifically intends to, and does, in fact, aid,
facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.
[¶] If all of these requirements are proved, the defendant does not need to actually have
been present when the crime was committed to be guilty as an aider and abettor. [¶] If
you conclude that the defendant was present at the scene of the crime or failed to prevent
the crime, you may consider that fact in determining whether the defendant was an aider
and abettor. [¶] However, the fact that a person is present at the scene of a crime or fails
to prevent the crime does not, by itself, make him or her an aider and abettor.”

                                              7
Intrepid at the time the shots were fired. The circumstances of the shooting indicate that
when Valencia and Gonzalez entered Barrio Mojados’s territory they were specifically
targeted by appellant as evidenced by the surveillance videos of appellant following
Gonzalez’s truck. The testimony that somebody in the car yelled at Gonzalez and
Valencia before cutting them off and then shooting at them supported an inference that
appellant and the other occupant of the Intrepid chased Gonzalez and Valencia for the
purpose of committing murder.
       In addition, we note that appellant lied in his police interview indicative of a
consciousness of guilt. Appellant stated that both the Chevy Tahoe and Dodge Intrepid
were inoperable and had been so for months. The surveillance cameras captured the
Intrepid as it followed Gonzalez’s truck on the day of the shooting. Detective Gersna
testified that the Intrepid started up and was drivable when he found it in appellant’s
garage.
       As stated previously, circumstantial evidence may be sufficient to connect
appellant to a crime and to prove his guilt beyond a reasonable doubt. (People v. Stanley
(1995) 10 Cal.4th 764, 793.) “Although it is the duty of the jury to acquit a defendant if
it finds that circumstantial evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the jury, not the appellate court
which must be convinced of the defendant’s guilt beyond a reasonable doubt.” (People v.
Bean (1988) 46 Cal.3d 919, 932–933.)
       Sufficient evidence supports a finding that appellant was a participant in the
murder, either as the shooter or as an aider and abettor who drove the car containing the
shooter. Appellant presented no evidence whatsoever that he may have “loaned” the car
to a third person and his suggestion on appeal is without merit.
II.    Substantial Evidence Supported the Gang Enhancement Allegation
       A.     Contentions
       Appellant contends that since the substantive counts of murder and attempted
murder must be reversed due to lack of substantial evidence “the enhancements a fortiori



                                               8
must be stricken.” Appellant also argues that the gang enhancements must be stricken
because they are not supported by substantial evidence.
       B.     Relevant Authority
       A gang enhancement finding is reviewed under the substantial evidence standard.
(People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) To establish a gang enhancement,
the prosecution must prove two elements: (1) that the crime was “committed for the
benefit of, at the direction of, or in association with any criminal street gang,” and (2) that
the defendant had “the specific intent to promote, further, or assist in any criminal
conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) The crime must be “‘gang
related.’” (People v. Gardeley (1996) 14 Cal.4th 605, 622, 625, fn. 12; People v.
Castaneda (2000) 23 Cal.4th 743, 745 [gang enhancement statute “increases the
punishment for some gang-related crimes”]; People v. Mendez (2010) 188 Cal.App.4th
47, 56 [gang enhancement statute “applies when a crime is gang related”].) A
defendant’s mere membership in the gang does not suffice to establish the gang
enhancement. (People v. Gardeley, supra, at pp. 623–624.) Rather, ‘“[t]he crime itself
must have some connection with the activities of a gang.’” (In re Frank S. (2006) 141
Cal.App.4th 1192, 1199.) “[T]o prove the elements of the criminal street gang
enhancement, the prosecution may, as in this case, present expert testimony on criminal
street gangs. [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047–1048.)
       C.     First Element: For the Benefit of and in Association with a Gang
       The first element of the gang enhancement may be satisfied by showing any one of
the following––the crime was committed for the benefit of, at the direction of, or in
association with a criminal street gang. (§ 186.22, subd. (b)(1).)
       Here, the testimony of the gang expert, Officer Ayon, provided ample evidence
that the crimes were committed for the benefit of the BM gang. (See People v. Albillar
(2010) 51 Cal.4th 47, 63 [“[e]xpert opinion that particular criminal conduct benefited a
gang by enhancing its reputation for viciousness can be sufficient to raise the inference
that the conduct was ‘committed for the benefit of . . . a[] criminal street gang’ within the
meaning of section 186.22(b)(1)”].)

                                              9
       Officer Ayon explained the importance of respect and territory in gang culture.
Gangs use violence to instill fear and intimidation and maintain control over their
territory. Confrontations with rival gangs over territory are linked to respect and gang
members are “obligated to take some kind of violent action upon contact or crossing
paths with a rival.” Officer Ayon testified that if an individual BM gang member, such as
appellant, fails to challenge a rival gang member, such as Valencia, he will look weak
and lose respect. If the BM gang was not feared they would lose respect which would
lead to a loss of territory, whereas a violent crime such as occurred here, instilled fear and
intimidation into the community. The murder of a rival gang member was considered the
ultimate gang crime committed on behalf of the gang. It made the rival gang smaller and
weaker while enhancing the reputation of their own gang as a violent gang that did not
hesitate to use violence.
       The BM gang considered the Temple Street gang as their chief rival since the
1990’s when Temple Street gang members started moving into their territory. The
evidence showed that Valencia, a member of the Temple Street gang, moved into a house
on West 55th Street in BM territory approximately three months before the shooting.
Valencia told Gonzalez on the morning of the shooting that he was involved in a dispute
with a specific BM gang member and pointed out a white car that belonged to that gang
member. Later, when that car cut off Gonzalez’s truck and the occupants yelled out
something, Valencia again identified it as “that guy from B.M.S.”
       From this evidence, it was reasonable to infer that the shootings of Valencia and
Gonzalez instilled fear and intimidation in the community. BM’s status was enhanced
because rival gangs saw that BM protected their territory by murdering a rival gang
member. Thus, there was substantial evidence of the “benefit of” prong of the
enhancement.
       We find no merit to appellant’s contention that Officer Ayon’s expert opinion was
not based on facts and lacked evidentiary value. At the time of the trial, Officer Ayon
had 12 years experience as an LAPD police officer with the last 11 years in the Rampart
Division where the BM gang members were active. He was assigned to the Rampart

                                             10
gang enforcement detail, had over a thousand contacts with gang members and
investigated gang-related crimes. He testified as a gang expert in excess of 20 times and
lectured on the lifestyle and gang culture of Los Angeles based gangs. The prosecutor’s
hypothetical questions were rooted in the facts shown by the evidence and were not based
on ‘“assumptions of fact without evidentiary support.’” (People v. Richardson (2008) 43
Cal.4th 959, 1008.) “A gang expert may render an opinion that facts assumed to be true
in a hypothetical question present a ‘classic’ example of gang-related activity, so long as
the hypothetical is rooted in facts shown by the evidence.” (People v. Gonzalez (2005)
126 Cal.App.4th 1539, 1551, fn. 4.) Officer Ayon, an expert on gang culture in general
and the BM gang in particular, was qualified to explain how criminal conduct could
enhance the gang’s reputation or benefit the gang. (People v. Ward (2005) 36 Cal.4th
186, 209–210.)
       D.     Second Element: Specific Intent
       With respect to the requirement that appellant committed the felony “with the
specific intent to promote, further, or assist in any criminal conduct by gang members”
(§ 186.22, subd. (b)(1)), appellant need only have had the specific intent to promote,
further, or assist in any criminal conduct by gang members, including the current offense,
and not necessarily other criminal conduct by gang members. (People v. Albillar, supra,
51 Cal.4th at pp. 64–65.) “[T]he scienter requirement in section 186.22(b)(1)—i.e., ‘the
specific intent to promote, further, or assist in any criminal conduct by gang members’—
is unambiguous and applies to any criminal conduct, without a further requirement that
the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction
sought to be enhanced.” (Id. at p. 66.)
       Murder and attempted murder were among BM’s primary activities and Officer
Ayon testified that the crime would benefit the gang in a number of ways. The
community in which the gang members lived and where the crimes took place would be
intimidated because it would show BM was active and took the ultimate step of
murdering a rival gang member to protect its territory. A reasonable juror could
conclude, based on the evidence presented at trial, that when appellant murdered

                                            11
Valencia and attempted to murder Gonzalez it was gang-related conduct committed to
retaliate against Valencia for moving into appellant’s territory and thereby disrespecting
appellant. The crimes enhanced BM’s reputation for violence and helped appellant
maintain the respect he required as a member of the gang. Therefore, we conclude that
substantial evidence supports the finding that appellant committed the felonies with the
specific intent to promote criminal conduct by gang members.
       Appellant’s contention that there was no evidence of a gang challenge is without
merit. In People v. Albillar, supra, 51 Cal.4th 47, there was no gang graffiti, no throwing
of gang signs, and no mention of their gang. Despite that lack of attribution, the Court
concluded the evidence was sufficient to support a finding that the crimes met the gang-
related prong of section 186.22, subdivision (b)(1). (People v. Albillar, supra, at pp. 60–
62.) Therefore the lack of attribution to a gang alone cannot be the basis for a finding of
insufficient evidence.
III.   Appellant was Properly Charged and Convicted of First Degree Murder
       Appellant claims that he was “charged with premeditated malice murder, but was
convicted of the separate, uncharged, and non-included offense of ‘drive-by murder.’”
He contends he was deprived of his right to due process of law because the amended
information did not contain an allegation of “drive-by” murder or refer to the discharge of
a firearm from a motor vehicle.
       Appellant concedes felony murder and malice murder are included within a charge
of murder. (People v. Davis (1995) 10 Cal.4th 463, 514.) However, he argues drive-by
murder is a separate offense alleging a distinct crime not merely a different theory of a
violation of section 187. Appellant notes drive-by murder has elements not included in
malice murder, namely, discharge of a firearm from a motor vehicle. Drive-by murder
also is not included within felony murder because, unlike felony murder, it requires the
specific intent to kill. Drive-by murder was added to section 189 in 1993. (Stats. 1993,
ch. 611, § 4.5, p. 3507.)
       Appellant’s contention is meritless. As explained in People v. Rodriguez (1998)
66 Cal.App.4th 157, section 189 establishes three categories of first degree murder. The

                                            12
first category consists of “various types of premeditated killings, and specifies certain
circumstances (use of explosives or armor-piercing ammunition, torture, etc.) which are
deemed the equivalent of premeditation. Section 189 secondly establishes a category of
first degree felony murders (murders perpetrated during felonies or attempted felonies
such as arson, rape, carjacking, etc.). Finally, section 189 establishes a third category
consisting of only one item, intentional murder by shooting out of a vehicle with intent to
kill.” (People v. Rodriguez, supra, at pp. 163–164.) Although drive-by murder differs
from both first degree premeditated murder and felony murder (People v. Chavez (2004)
118 Cal.App.4th 379, 386), it nonetheless is merely a theory of first degree murder and it
is well settled that an accusatory pleading charging a defendant with murder need not
specify the theory of murder upon which the prosecution intends to rely. (People v.
Hughes (2002) 27 Cal.4th 287, 369.)
       Furthermore, the information included section 12022.53 enhancement allegations,
which put appellant on notice of the People’s intent to establish that he personally, or a
principal, personally and intentionally discharged a firearm during the murder; the
testimony at the preliminary hearing gave appellant adequate notice of the People’s
theory; the evidence at trial, previously discussed in our Factual Summary, alerted
appellant to the first degree drive-by murder theory, including its requisite conduct and
intent; and, appellant did not object at the section 402 hearing during the People’s
case-in-chief when the People made clear its intent to proceed on a drive-by theory of
first degree murder. Appellant had every opportunity to present a defense based on the
People’s theory and did not do so.
       Appellant was properly charged and convicted of first degree murder.




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                                    DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           _____________________, J. *
                                                  FERNS
We concur:




____________________________, Acting P. J.
      ASHMANN-GERST


____________________________, J.
      CHAVEZ




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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