Filed 8/20/20 P. v. Raker CA2/4

   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                         SECOND APPELLATE DISTRICT
                                       DIVISION FOUR



 THE PEOPLE,                                                    B299718

           Plaintiff and Respondent,                            (Los Angeles County
                                                                Super. Ct. No. ZM013684)
           v.

 JEFFREY RAKER,

           Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, David W. Stuart, Judge. Affirmed.
      Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
       The Los Angeles County District Attorney filed a petition to
civilly commit appellant Jeffrey Raker under the Sexually Violent
Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.)1 in
September 2008. Shortly before the June 2019 bench trial on the
petition, appellant made a motion under People v. Marsden
(1970) 2 Cal.3d 118 (Marsden) to obtain “conflict counsel” who
could file a motion to dismiss the case as unduly delayed under
People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon) and People
v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36 (Vasquez).
The trial court denied the Marsden motion after holding a closed
hearing.
       Appellant subsequently gave his counsel two written
motions seeking to replace counsel due to a conflict. Appellant’s
counsel presented the motions to the trial court but did not join
or file them. Appellant’s counsel then represented appellant at
the trial, at which appellant waived his presence. At the
conclusion of the trial, the trial court granted the petition.
       Appellant now contends the trial court erred by denying his
initial Marsden motion. He further argues that his counsel’s
refusal to file the motions he subsequently proffered
demonstrated a conflict of interest that interfered with his Sixth
Amendment right to counsel. In addition, appellant contends his
due process rights have been violated because a portion of the
record in this matter has been lost. We reject these contentions
and affirm.
                           BACKGROUND
      In 1996, appellant pled no contest to seven counts of lewd
acts upon a child (Pen. Code, § 288, subd. (a)), six counts of

      1All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.


                                2
continuous sexual abuse of a child (Pen. Code, § 288.5), four
counts of oral copulation of a person under age 14 (Pen. Code,
§ 288a, subd. (c)), and one count of oral copulation of a person
under age 16 (Pen. Code, § 288a, subd. (b)). Appellant was
sentenced to 16 years in state prison.
       On September 19, 2008, the Los Angeles County District
Attorney filed a petition under the SVPA to civilly commit
appellant as a sexually violent predator (SVP). The petition is
not contained within the appellate record, nor are any records
documenting proceedings that occurred between the petition’s
filing and March 2, 2011. The superior court informed appellate
counsel that the portion of the record containing those documents
could not be located.
       The appellate record begins with a minute order dated
March 3, 2011. Like many minute orders in the record, it
documents a pretrial hearing culminating in a continuance of the
proceedings. We do not detail those numerous orders here;
instead, we highlight only a few events that occurred prior to the
motions at issue in this appeal.
       On August 22, 2011, after engaging in a colloquy with the
court, appellant personally waived his right to a speedy probable
cause hearing.2 (See § 6602.) The court specifically asked
appellant, “We have updated current evaluations from the
evaluators in your case from June and July of this year; however,
your attorney has indicated that you do not wish to proceed to
trial at this time; is that correct?” Appellant said that it was. He



      2The record suggests that appellant either waived his right
to a probable cause hearing or stipulated that there was probable
cause in December 2008. That waiver or stipulation at some
point was withdrawn.


                                 3
further agreed to “inform the court and counsel when you believe
that you are ready to proceed to trial.”
       On February 6, 2013, appellant’s counsel, deputy public
defender Alan Morgenstern, filed a written waiver of appellant’s
appearance at the proceedings and speedy trial rights. The filing,
which was signed by appellant and dated March 28, 2012,
included the following language: “I understand I have a right to a
trial pursuant to the due process clause of the Federal and State
Constitutions, the SVP Statute under WIC § 6600 et seq[.] and
pursuant to court case People v. David Litmon [, supra,] 162
Cal.App.4th 383. At this time, I do not wish to exercise my
Litmon rights and request that my case be delayed. I will notify
the court and/or my counsel when I desire to have a trial. [¶] I
have discussed this case and my rights with my attorney; I
understand his explanations and I elect not to have my trial at
this time.”
        The court held a probable cause hearing on the petition on
October 7, 2013, October 9, 2013, and December 3, 2013. At the
conclusion of the hearing, the court found “that there is a strong
suspicion that the person named in the petition JEFFREY
RAKER: [¶] (1) Has been convicted of a qualifying sexually
violent offense. [¶] (2) That the defendant suffers from a
diagnosable mental disorder. [¶] (3) That the disorder makes it
likely that they will engage in sexually violent criminal conduct if
released (In making this finding, the Court has considered,
among other factors, the defendant’s amenability to voluntary
treatment), and [¶] (4) That the sexually violent criminal conduct
will be predatory in nature.”
       On June 26, 2014, Morgenstern informed the court that he
was being transferred out of the public defender unit that
handles SVP cases. Deputy public defender Sarah Soher
replaced him.


                                 4
       On October 25, 2016, Soher informed the court that she did
not believe that her trial schedule would permit her to try
appellant’s case in 2017. The court directly asked appellant, who
was present via video conferencing, for his “view about the timing
for your trial.” Appellant stated, “I have no problem with it. I
have no problem. I’m getting hip surgery next year. So it works
in with my schedule.”
       On June 27, 2017, new counsel, deputy public defender
Alvin V. Thomas, appeared for appellant.
       On March 19, 2018, the court set appellant’s trial for
December 5, 2018.
       On November 26, 2018, Thomas informed the court that his
expert witness had not been able to update her evaluation of
appellant due to scheduling issues. The court advised appellant,
who was present via video conferencing, that his expert, whose
evaluation was “very important for your trial,” would not be able
to see him before trial. “So I would have to vacate that trial date
and set a new pretrial date in January with an eye towards
setting a new trial date after that. [¶] Are you agreeable to all of
that?” Appellant stated, “Yes, I am, Judge.”
       On January 14, 2019, Thomas informed the court that
appellant was scheduled for a medical procedure on January 15,
2019 and his hip surgery in February 2019. The parties agreed
to continue the matter.
       On March 11, 2019, appellant appeared at a pretrial
hearing via video conference. Thomas told the court that he
expected the matter “to be back on track as far as the trial goes.”
The court advised appellant that the trial was scheduled for June
12, 2019, and stated that it “looks like you will get your trial in
June unless something else happens.” Appellant responded, “All
right. Thank you.”




                                 5
        At the next pretrial hearing, on April 15, 2019, appellant
appeared via video conference. He told the court he was
“agreeable” to putting the matter over, as he had another medical
procedure scheduled for April 26, 2019.
        At the next hearing, on May 13, 2019, appellant again
appeared via video conference. When the court asked him to
confirm Thomas’s representation that he intended to waive his
appearance at trial, appellant responded that he would “like to
read a statement.” Due to a poor video connection, the court was
unable to understand the statement. It ordered appellant to mail
the statement to the court to be put in the file; “[i]t will be as
though you read it into the record.”3
        At the next hearing, on May 20, 2019, Thomas reminded
the court that appellant “at the last appearance was attempting
to file a Vasquez type motion.” Thomas further advised the court
that he had discussed the motion with appellant, and that “along
with the Vasquez-[Litmon] type motion, was intending to file a
Marsden motion.” The court responded that it had not yet
received the statement. It told appellant, who had again
appeared via video conference, that it would rule on the motion at
the next hearing, scheduled for June 3, 2019.
        The court received appellant’s statement on May 21, 2019.
The statement read, in relevant part:
        “I hereby request that your honor address an actual conflict
of interest pursuant to Harris v. Superior Court, 225 Cal.App.4th

      3Appellant  also attempted to disqualify the judge pursuant
to Code of Civil Procedure section 170.6 “for bias and prejudice.”
Because his counsel did not join the motion, the trial court
ultimately found the motion “deemed not filed, not filed but
made.” (See People v. Frierson (1985) 39 Cal.3d 803, 813
[including “whether a particular trial judge should be challenged”
among tactical matters within the control of an attorney].)


                                 6
1129 (2014). As noted in Harris, the right to the effective
assistance of counsel is a substantial right guaranteed by the
Sixth Amendment and by article I, section 15 of the California
Constitution. This constitutionally guaranteed right includes the
correlative right to counsel who is free from any conflict of
interest that undermines counsel’s loyalty to his client’s cause.
Moreover, as a general proposition, such conflicts embrace all
situations in which an attorney’s loyalty to, or efforts on behalf of,
a client are threatened by his responsibilities to another client or
a third person or by his own interests. If a conflict of interest
impedes defense counsel from asserting his client’s
contentions without fear of consequences to himself or
herself, the integrity of the adversary system is cast into doubt
because counsel cannot ‘play the role necessary to ensure that the
trial is fair.’ . . .
       “[C]urrent counsel . . . is so burdened by his own self-
interests that he cannot and will not say all that is to be said on
my behalf with respect to a motion to dismiss which relies, in
part, on his own legal malpractice; this has created an actual
conflict.
       “Therefore, I respectfully request the honorable court
appoint independent counsel to confer with your humble
petitioner and file such equitable pleadings for dismissal as will
address the due process violations which have thus far taken
place in this case; I contend that all parties in this process have
acted together to deny me due process of law. The court has
permitted continuances without any good cause showing by
either side. The people have failed, without good cause to bring
my case to trial in a timely manner; and my own counsel has
failed to offer any showing of good cause for the continuances to
have gone on for over a decade.”




                                  7
       On June 3, 2019, appellant again appeared via video
conference. The court told him that it had received the statement
and concluded it was “in the nature of a Marsden motion.” It
then cleared the courtroom for a Marsden hearing with appellant
and Thomas. At the outset of the Marsden hearing, appellant
told the court, “It’s not a Marsden. It’s a motion to have a conflict
attorney.” The court disagreed, noting, “you’re claiming there’s
an irreconcilable conflict.” The court then asked Thomas why he
thought he could still represent appellant. Thomas stated that he
had been “pretty diligent in preparing the matter for trial,” and
“just recently learned that Mr. Raker was dissatisfied with the
progress at which the case was going to trial.” The court then
observed that trial of the matter was set for later in the month,
and asked appellant if “your view is that notwithstanding you
have a trial June 12th, you’re entitled to a dismissal now?”
Appellant confirmed that was his position. After further
explanation from Thomas, the court stated, “now I’m
understanding it’s not a Marsden motion at all, it’s something
different.”
       The court again asked Thomas for his thoughts. He stated,
“I believe our office has been diligent in preparing Mr. Raker’s
case for trial. . . . I don’t think that there’s been any delay, any
unnecessary delay. And I think the records, the court records
would reflect that.” The court stated, “Well the petition was filed
in ’08, but we’ve set a trial. We set the trial date on April 15th
and continued to May 13, at which point Mr. Raker agreed to
that continuance. He had surgery in February; right?” Thomas
confirmed that was correct, and the court continued, “He waived
his jury trial appearance, okay. I think I know what I’m going to
do. The motion is denied. I find that there isn’t such a conflict
that would require separate counsel at this point.”




                                  8
       Appellant’s bench trial commenced on June 13, 2019. He
was not present; he had reiterated his waiver of that right at the
preceding hearing. Thomas advised the trial judge that appellant
had “sent to me a notice of actual conflict,” along with “a similar
Marsden-type motion, similar to the issue that was heard” by the
court previously. Thomas stated that he “called Mr. Raker and I
spoke to him about both motions. I informed him that he sent
them to the court; that I would not be joining in these motions;
and I don’t agree with any of the propositions he has in the
motions; these are similar issues that were heard by Judge Ryan
on - - back on June 3rd. [¶] But, after talking to a representative
in my appellate department, out of an abundance of caution, I
informed Mr. Raker that I would - - without joining in the
motions - - I would present them to the court and let the court
decide how to handle it. Once again, these are not my motions;
they are not from my office. These are Mr. Raker’s motions.”
       The court stated, “Well, Mr. Thomas, you are the attorney
of record, and Mr. Raker is not pro per. He may not file motions
on his own. You can file the motions that you think are
appropriate. So whatever he mailed to you, directly to your
office, it’s up to you to decide whether there’s some merit in any
motion to be filed. So we’re not going to accept for filing any
motions that Mr. Raker files or mails directly to the court. We’ll
place it in the court file and - - but it won’t be officially filed in
this action. . . . [¶] The Marsden was already heard and denied
via video conference on June 3rd; is that correct?” Thomas
confirmed it was. The court then continued, “Okay. So he is not
here, so - - he can’t make a Marsden motion if he is not here. And
we’re not in the department that has video conferencing.”
       Thomas subsequently attempted to give appellant’s
motions to the court. The court stated, “I don’t want them. They
were mailed to you. . . . If you think that there’s a colorable


                                  9
motion in what he is sending you, then that’s up to you.” Thomas
responded, “I’m not joining. We’re not filing.”
       The bench trial concluded on June 21, 2019. The court
found the allegations in the petition to be true and found that
appellant was an SVP. The court ordered appellant committed to
the custody of the State Department of Mental Health pursuant
to section 6604 “for an indeterminate time until such time that
they are entitled to be released according to the law.”
       Appellant timely appealed.
                            DISCUSSION
I.     Marsden and Litmon/Vasquez Motions
       Appellant argues that the trial court erred by denying his
initial Marsden motion “in light of the conflict of interest and
breakdown in the attorney client relationship.” He further
contends that an irreconcilable conflict arose when his counsel
declined to file his subsequent Marsden and/or Litmon/Vasquez
motions. We disagree.
       A.    Legal Principles
       Proceedings under the SVPA are civil in nature. However,
a person alleged to be an SVP is afforded a number of procedural
safeguards commonly associated with criminal trials. (Reilly v.
Superior Court (2013) 57 Cal.4th 641, 648.) He or she is entitled
to the assistance of counsel at the probable cause hearing.
(§ 6602, subd. (a).) An alleged SVP is also “entitled to a trial by
jury, to the assistance of counsel [at that trial], to the right to
retain experts . . . and to have access to all relevant medical and
psychological records and reports.” (§ 6603, subd. (a).) The
People bear the burden of proving beyond a reasonable doubt that
the person is an SVP. (§ 6604.)
       An alleged SVP’s right to counsel “includes the right to
representation free of conflicts of interest that may compromise
the attorney’s loyalty to the client and impair counsel’s efforts on


                                10
the client’s behalf.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
It also includes the right to discharge or substitute appointed
counsel, if the failure to do so would substantially impair his or
her rights. (Marsden, supra, 2 Cal.3d at p. 123; People v. Hill
(2013) 219 Cal.App.4th 646, 652 [“a defendant in an SVPA
proceeding has a due process right to a Marsden hearing”].) An
alleged SVP is entitled to substitute his or her counsel if the
record clearly shows that appointed counsel is not providing
adequate representation or that the alleged SVP and counsel
have developed such an irreconcilable conflict that effective
representation is unlikely. (People v. Jackson (2009) 45 Cal.4th
662, 682.) Tactical disagreements between the client and counsel
do not by themselves constitute irreconcilable conflict. (Id. at p.
688.) There is no absolute right to substitute counsel. (People v.
Gutierrez (2009) 45 Cal.4th 789, 803.) Whether to do so lies
within the discretion of the trial court; we review the trial court’s
decision on a Marsden motion for abuse of that discretion. (Ibid.)
       In addition to a statutory right to counsel, alleged SVPs
also have a due process right to be heard at a “meaningful time.”
(Litmon, supra, 162 Cal.App.4th at pp. 395, 399.) The SVPA does
not establish a time frame within which trial must be held after
probable cause to support the petition has been found. (Vasquez,
supra, 27 Cal.App.5th at p. 57.) While lengthy or even “extreme”
delay in bringing an SVP matter to trial may be considered
“oppressive” (Litmon, supra, 162 Cal.App.4th at p. 406), it is not
alone indicative of a due process violation. (Vasquez, supra, 27
Cal.App.5th at p. 69.) Neither the California nor United States
Supreme Court has decided what standard should be used to
evaluate due process claims stemming from delays in SVP trials.
But our courts of appeal have reviewed such claims under the
balancing tests set forth in Barker v. Wingo (1972) 407 U.S. 514
(Barker) and Mathews v. Eldridge (1976) 424 U.S. 319 (Mathews).


                                 11
(See, e.g., Litmon, supra, 162 Cal.App.4th at pp. 396-406; People
v. Landau (2013) 214 Cal.App.4th 1, 33.)
        Barker, supra, 407 U.S. at p. 530 articulated four factors a
trial court should consider in determining whether a particular
(criminal) defendant has been deprived of the right to speedy
trial: the length of the delay, the reason for the delay, whether
the defendant asserted his or her right to speedy trial, and
whether the defendant was prejudiced by the delay. Barker
cautioned that none of the factors is “either a necessary or a
sufficient condition to the finding of a deprivation of the right of
speedy trial. Rather, they are related factors and must be
considered together with such other circumstances as may be
relevant.” (Id. at p. 533.) Similarly, Mathews, supra, 424 U.S. at
pp. 334-335, which considered the process due in connection with
the administrative termination of Social Security benefits,
recognized that the flexibility of due process required the
balancing of three factors: “[f]irst, the private interest that will
be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government’s interest, including the
function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirements would
entail.”
        Applying those tests in the SVP context, the Litmon court
concluded that a delay in trial occasioned by the prosecutor’s
schedule and witness availability violated an SVP’s due process
rights. (Litmon, supra, 162 Cal.App.4th at pp. 406-407.)
Similarly, in Vasquez, the court concluded that the
“extraordinary” 17-year delay in bringing an SVP petition to trial
resulted from “‘a systemic “breakdown in the public defender
system”’” in Los Angeles County that forced the alleged SVP,


                                12
Vasquez, to choose between having prepared counsel and a timely
trial despite his entitlement to both. (Vasquez, supra, 27
Cal.App.5th at p. 41.) Both of those cases concluded that the
appropriate remedy was dismissal of the petition. Motions
seeking dismissal of SVP petitions on similar grounds accordingly
are referred to as Litmon or Vasquez motions; we use both names
here. We review a trial court’s ruling on a Litmon or Vasquez
motion to dismiss for pretrial delay for abuse of discretion.
(Vasquez, supra, 27 Cal.App.5th at p. 55.)
       B.    Analysis
       In his initial Marsden motion, appellant asserted that “all
parties in this process have acted together to deny me due
process of law. The court has permitted continuances without
any good cause showing by either side. The people have failed,
without good cause to bring my case to trial in a timely manner;
and my own counsel has failed to offer any showing of good cause
for the continuances to have gone on for over a decade.” These
assertions are not supported by the record. As detailed above,
appellant was aware that Litmon guaranteed him the right to a
speedy trial as early as March 28, 2012, when he signed a
document acknowledging and affirmatively waiving that right.
Appellant nevertheless subsequently agreed to continue his trial
numerous times. In October 2016, he repeatedly stated that he
had “no problem” continuing the trial from 2017 to 2018. As 2018
came to a close, appellant told the court he was “agreeable” to
delaying the trial further. Appellant further agreed to put the
matter over several times to accommodate his medical
procedures, and raised no objection as late as April 2019 to his
trial being held in June 2019. At the Marsden hearing,
appellant’s counsel informed the court that he had “just recently
learned that Mr. Raker was dissatisfied with the process at which




                               13
the case was going to trial.” Counsel’s characterization is in
accordance with the record.
       “[T]he defendant’s assertion of or failure to assert his right
to a speedy trial is one of the factors to be considered in an
inquiry into the deprivation of the right.” (Barker, supra, 407
U.S. at p. 528.) Here, appellant raised no issue regarding the
timeliness of his trial until the eleventh hour. He likewise failed
to allege any specific issues with counsel’s performance, even
when afforded the express opportunity to do so at the Marsden
hearing. The trial court did not abuse its discretion in denying
the motion to appoint substitute or “conflict” counsel.
       Appellant asserts that his case “was handled by the very
same department, during the very same time period, that was
found to have been sufficiently flawed at a systemic level to have
denied George Vasquez due process.” He invites us to conclude
that the same issues “necessarily impacted appellant’s case the
same as Vasquez’s case.” We decline to engage in such
speculation. In Vasquez, counsel “complained about her ability to
prepare for trial given the 50 percent reduction in staffing at the
public defender’s office and the resulting increase in her
workload,” and the record revealed that “Vasquez only acquiesced
in the continuances to enable his attorneys to be prepared for
trial.” (Vasquez, supra, 27 Cal.App.5th at p. 62.) The record here
at best is minimally suggestive of similar issues. Appellant’s
attorney Soher had a heavy 2017 trial calendar, but neither she
nor the other two attorneys who represented appellant alerted
the court to systemic staffing problems. More importantly, there
is no evidence that appellant “only acquiesced in the
continuances to enable his attorneys to be prepared for trial.” To
the contrary, he repeatedly cited his medical procedures and a
general desire not to proceed to trial as the reasons for his
agreement to continuances.


                                 14
       Appellant also argues that the court abused its discretion
by allowing his counsel “to take a position against a potential
Litmon motion in the wake of Vasquez” rather than accepting for
filing “what clearly could have been a successful Litmon motion
based solely on the similarities of his case with the Vasquez and
Litmon cases.” He contends counsel was conflicted between
loyalty to him and loyalty to his office. This claim fails. Appellant
points only to Vasquez’s “fairly damning account of the SVP
department during the period that appellant’s case was waiting
for trial,” rather than to any evidence showing similar problems
in his case. Appellant also chose to waive his presence at trial
despite the purported conflict with his attorney, which the trial
court found precluded appellant from making a second Marsden
motion. His counsel’s decision not to file the appellant’s proffered
motions in appellant’s absence was a tactical one that did not
evince a complete breakdown in the attorney-client relationship.
(See People v. Clark (2011) 52 Cal.4th 856, 912.)
II.    Missing Record
       Appellant contends that “the superior court’s failure to
retain the first half of appellant’s file [documenting the
proceedings from September 19, 2008 through March 2, 2011] has
denied appellant his Federal Due Process right to a complete and
accurate record on appeal and therefore reversal is required.” We
disagree.
       “A criminal defendant is indeed entitled to a record on
appeal that is adequate to permit meaningful review. That is
true under California law. (People v. Howard (1992) 1 Cal.4th
1132, 1165.) It is true as well under the United States
Constitution-under the Fourteenth Amendment generally, and
under the Eighth Amendment specifically when a sentence of
death is involved. (People v. Howard, supra, 1 Cal.4th at p.
1166.)” (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8.)


                                 15
However, “[p]roceedings to commit an individual as a sexually
violent predator in order to protect the public are civil in nature.”
(People v. Allen (2008) 44 Cal.4th 843, 860.) Even if we were to
assume without deciding that appellant shares this constitutional
and statutory entitlement to an adequate record, “[t]he record on
appeal is inadequate . . . only if the complained-of deficiency is
prejudicial to the defendant’s ability to prosecute his appeal.”
(People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.) “It is the
defendant’s burden to show prejudice of this sort.” (Ibid.)
      Appellant has not carried that burden here. He does not
show that the absence of documents dating from September 2008
through March 2, 2011 is prejudicial to his ability to assert his
Marsden, Litmon, and Vasquez claims, or any other. Instead, he
“acknowledges that the record that does exist discloses no
objections or other irregularities in the missing part of the record
and that courts have routinely rejected arguments such as the
one raised herein on the grounds that appellant has not shown
the materiality of the omissions or attendant prejudice.”
                           DISPOSITION
      The judgment is affirmed.
  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                            COLLINS, J.

We concur:


MANELLA, P. J.


WILLHITE, J.




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