                                          2016 IL App (1st) 141251
                                                                                    SECOND DIVISION
                                                                                    October 18, 2016



                                                  No. 1-14-1251


     THE PEOPLE OF THE STATE OF ILLINOIS,                   )               Appeal from the
                                                            )               Circuit Court of
                            Plaintiff-Appellee,             )               Cook County, Illinois.
                                                            )
     v.                                                     )               No. 11 CR 17491
                                                            )
     ROMARO TAYLOR,                                         )               Honorable
                                                            )               Luciano Panici,
                            Defendant-Appellant.            )               Judge Presiding.


            JUSTICE MASON delivered the judgment of the court, with opinion.
            Presiding Justice Hyman and Justice Pierce concurred in the judgment and opinion.

                                                   OPINION

¶1          Following a 2014 jury trial, defendant Romaro Taylor was convicted of attempted murder

     and aggravated battery with a firearm and sentenced as a Class X offender to 36 years of

     imprisonment. On appeal, he argues that (1) the trial court erred in refusing to instruct the jury

     on defense of others, (2) trial counsel was ineffective for failing to request a jury instruction that

     Taylor could not be found guilty of attempted first degree murder if he unreasonably believed he

     needed to use force in defense of others, (3) the trial court erroneously refused to sentence Taylor

     as a Class 1 offender on his attempted murder conviction, and (4) the trial court improperly

     imposed certain fines and fees. For the reasons that follow, we affirm Taylor's conviction, vacate

     the $2 Public Defender Automation Fee, and remand for resentencing.

¶2                                             BACKGROUND
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¶3          On December 20, 2010, Taylor shot his then-girlfriend, Lashae Depratto, after her car hit

     his ex-girlfriend's car, in which Taylor's seven-year-old daughter was a passenger. Depratto and

     an eyewitness identified Taylor as the shooter, but he evaded arrest until September 2011.

     Following his arrest, Taylor was charged with, inter alia, attempted first degree murder and

     aggravated battery with a firearm.

¶4          At a March 2014 jury trial, Depratto testified that on December 20, she drove Taylor to

     his mother's house on 8th Avenue in Phoenix, Illinois because Taylor's niece was coming over to

     pick up clothes. Once they arrived at the house, Taylor went inside, but he asked Depratto to

     leave because his mother did not like her. Depratto did not leave, but remained in her car, which

     was parked on the west side of the street directly in front of Taylor's mother's house, for

     approximately 20 minutes. She then went to the front door of the house and asked Taylor if she

     could use the bathroom. Taylor allowed her inside, and the two then argued over Depratto's

     request that Taylor return his set of keys to her house and car. During their exchange, Taylor's

     niece and his daughter arrived, having been driven over by Erica Braxton, Taylor's ex-girlfriend

     and mother of his child. Braxton did not come into the home, but waited in her car, which was

     parked on the east side of 8th Avenue, across from Taylor's mother's house.

¶5          Eventually, Depratto obtained her keys from Taylor and left the house, but instead of

     driving home, she circled the block. As she approached Taylor's mother's house, driving

     southbound, she saw Taylor leaning inside Braxton's car "fondling" and "playing" with her.

     Angered, Depratto drove past them, but then made a U-turn and drove northbound on the east

     side of 8th Avenue. When she returned to the scene, Taylor was no longer standing by Braxton's

     car. As Depratto neared Braxton's car, she testified that she swerved to avoid a pothole or speed

     bump (though there was no evidence of either near the site of the occurrence) and sideswiped the



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     driver's side of Braxton's car. The collision caused Depratto's right axle and tire to "break" and

     her airbags to deploy. Additionally, the front bumper of Braxton's car was pulled off. When

     Depratto's car came to a stop in front of Braxton's vehicle, Depratto put the car in park, turned it

     off, and tried, unsuccessfully, to restart it. She then heard Taylor say either "bitch you tried to

     kill my kid," or "bitch you trying to kill my kid." When Depratto turned her head, Taylor had

     emerged from his mother's yard, 10 feet away, and was approaching her car with a gun in his

     hand. As Taylor stood at her closed car window, he shot at Depratto three times, hitting her arm

     as she raised her hands to cover her face. She was eventually taken to the hospital and treated for

     her injuries.

¶6           On cross-examination, Depratto admitted telling investigators who spoke to her while she

     was hospitalized that she was upset at Taylor because she believed he and Braxton were talking

     about her behind her back. Although she denied telling investigators that she was driving 30 to

     35 miles per hour when she collided with Braxton's parked car, she was impeached on this point

     by the stipulated testimony of Investigator Paul Jimos and Detective Sergeant Valadez of the

     Phoenix police department, who interviewed her on December 23, 2010.

¶7           At the jury instruction conference following the conclusion of testimony, Taylor sought

     an instruction that he was acting in defense of others, which the court declined to give, stating:

     "The [d]anger had subsided. There was no more danger. When the car stopped, the car wasn't

     going anywhere. So at that point in time self defense is no longer available. So I'm not giving

     them the self defense instruction or *** the defense of others ***."

¶8           The jury ultimately convicted Taylor of attempted first degree murder and aggravated

     battery with a firearm, and the court merged the two convictions for sentencing purposes.




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¶9            A defendant convicted of attempted first degree murder is generally subject to Class X

       sentencing (720 ILCS 5/8-4(c)(1) (West 2012)), but at Taylor's sentencing hearing, defense

       counsel argued that he should be sentenced as a Class 1 offender pursuant to section 8-4(c)(1)(E)

       of the Criminal Code, which reads:

              "[I]f the defendant proves by a preponderance of the evidence at sentencing that,

              at the time of the attempted murder, he or she was acting under a sudden and

              intense passion resulting from serious provocation by the individual whom the

              defendant endeavored to kill, or another, and, had the individual the defendant

              endeavored to kill died, the defendant would have negligently or accidentally

              caused that death, then the sentence for the attempted murder is the sentence for a

              Class 1 felony." 720 ILCS 5/8-4(c)(1)(E) (West 2012).

       The trial court found this section inapplicable because it did not believe that had Depratto died,

       Taylor's conduct could have been described as accidental or negligent. Alternatively, the court

       found that Taylor was not acting under a "sudden and intense passion." The court sentenced

       Taylor to 36 years of imprisonment. Taylor unsuccessfully moved to reconsider his sentence.

¶ 10                                               ANALYSIS

¶ 11          We first address the claimed error in the jury instructions. Taylor contends that the trial

       court erred in refusing to instruct the jury on defense of others, which is an affirmative defense

       requiring some evidence that (1) unlawful force was threatened against defendant or others, (2)

       defendant was not the aggressor, (3) the danger of harm was imminent, (4) the use of force was

       necessary, (5) defendant subjectively believed a danger existed requiring the use of force

       applied, and (6) defendant's belief was objectively reasonable. See People v. Jeffries, 164 Ill. 2d

       104, 127-28 (1995); 720 ILCS 5/7-1(a)( West 2012)). The overarching question is whether the



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       defendant's subjective belief in the necessity of using deadly force was reasonable under the

       circumstances. People v. Holman, 2014 IL App (3d) 120905, ¶ 58. A defendant is entitled to a

       self-defense or defense of others instruction so long as there is slight evidence adduced at trial to

       support his theory. People v. Lee, 213 Ill. 2d 218, 224 (2004).

¶ 12          Our supreme court has expressed divergent views as to what standard of review we apply

       to a trial court's refusal to give a specific jury instruction. Compare People v. Everette, 141 Ill.

       2d 147, 157 (1990) (applying de novo standard of review to issue of whether defendant was

       entitled to jury instructions on self-defense) and People v. Washington, 2012 IL 110283, ¶ 19

       (reviewing de novo trial court's refusal to instruct jury on second degree murder), with People v.

       Mohr, 228 Ill. 2d 53, 65 (2008) (reviewing trial court's decision to give instruction defining

       provocation for abuse of discretion) and People v. Jones, 219 Ill. 2d 1, 31 (2006) ("The giving of

       jury instructions is a matter within the sound discretion of the trial court."). This court has

       examined this conflict in recent cases and determined that abuse of discretion is the appropriate

       standard of review. See, e.g., People v. Cacini, 2015 IL App (1st) 130135, ¶ 46; People v.

       Gibson, 403 Ill. App. 3d 942, 950-51 (2010) (abrogated on other grounds by People v. Bailey,

       2014 IL 115459, ¶ 18); People v. Couch, 387 Ill. App. 3d 437, 444 (2008); see also People v.

       Boston, 2016 IL App (1st) 133497, ¶¶ 34, 37 (distinguishing Everette and Washington but

       finding outcome was same under either abuse of discretion or de novo review). We reach the

       same conclusion.

¶ 13          In Everette, the first case to apply a de novo standard of review to a trial court's jury

       instructions, the supreme court relied on People v. Lockett, 82 Ill. 2d 546, 553 (1980), for the

       proposition that "[i]t is a matter of law whether the defendant has met the evidentiary minimum

       entitling him to instructions on an affirmative defense." 141 Ill. 2d at 157. But in Lockett, the



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       supreme court stated only that it was the duty of the trial court to determine if there was any

       evidence tending to show that the defendant had a subjective belief that the use of force was

       necessary, while it was for the jury to decide if that subjective belief was reasonable or

       unreasonable. Lockett, 82 Ill. 2d at 552-53. The Lockett court then noted that it could conceive

       of no circumstance in which the trial court could take that question from the jury and determine,

       as a matter of law, that defendant's subjective belief in the need to use force was reasonable

       rather than unreasonable. Id. at 553. This conclusion does not support a de novo standard of

       review for the more general issue of whether the evidence is sufficient to support the giving of a

       jury instruction. See People v. Boston, 2016 IL App (1st) 133497, ¶¶ 34-36.

¶ 14          Our supreme court repeated the Everette standard in People v. Washington, 2012 IL

       110283, ¶ 19. But the issue in Washington was whether a trial court that instructs the jury on

       self-defense is required, as a matter of law, to further instruct the jury on second degree murder.

       Id. ¶ 56. This is clearly a legal question calling for de novo review. In contrast, here, the issue is

       whether there is sufficient evidence to support a defense of others instruction, which is a question

       of fact, not of law. See Cacini, 2015 IL App (1st) 130135, ¶ 46. As such, an abuse of discretion

       standard of review is appropriate. Id.

¶ 15          Abuse of discretion is the most deferential standard of review, second only to no review

       at all. People v. Holman, 402 Ill. App. 3d 645, 650 (2010). An abuse of discretion occurs when

       the trial court's decision is "fanciful, arbitrary, or unreasonable to the degree that no reasonable

       person would agree with it." People v. Ortega, 209 Ill. 2d 354, 359 (2004). Stated differently,

       we will reverse a trial court's decision for an abuse of discretion only where the decision is

       "'clearly against logic,' 'without employing conscientious judgment.'" Couch, 387 Ill. App. 3d at

       444 (quoting Long v. Mathew, 336 Ill. App. 3d 595, 600 (2008)).



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¶ 16           We cannot say the trial court's conclusion was illogical or evinced a lack of judgment.

       Depratto testified that her car was inoperable after the crash, as her airbags had deployed and her

       right axle was broken. Her attempt to restart it was unsuccessful. Thus, she no longer posed a

       danger to Taylor's daughter. Taylor contends on appeal that from his vantage point ten feet away

       from the scene of the crash, he was unaware that Depratto was unable to start her car and cause

       further injury. But because Taylor did not testify, we do not know what he saw or could see.

       Accordingly, it was not unreasonable for the trial court to disregard this speculative argument.

       Finally, the fact that Taylor yelled that Depratto was "trying to" or "tried to" "kill [his] kid," in

       light of the other evidence, does not support Taylor's contention that harm was imminent. The

       car had stopped, the airbags had deployed, and there was no immediate danger that Depratto

       would (or could) restart it. Even if Taylor could not discern the condition of the vehicle from ten

       feet away, when he stood five to six inches from Depratto's window and shot at her, he surely

       knew that the threat had passed as the evidence showed she put her hands up in a defensive

       posture. For these reasons, we conclude that the trial court did not abuse its discretion when it

       declined to instruct the jury on defense of others. See People v. Dillard, 319 Ill. App. 3d 102,

       106 (2001) (right of self-defense does not permit a defendant to act in retaliation or "to pursue

       and inflict injury upon an initial aggressor after the aggressor abandons the altercation").

¶ 17           Taylor next challenges his counsel's performance with regard to tendering jury

       instructions, contending that counsel should have sought a non-IPI instruction that if the jury

       found he had an unreasonable belief in the need to use force, it should acquit him of attempted

       first degree murder. A claim of ineffective assistance requires a defendant to demonstrate (1)

       that counsel's performance fell below an objective standard of reasonableness and (2) there is a

       reasonable probability that the outcome of the proceeding would have been different but for



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       counsel's errors. People v. Ramsey, 239 Ill. 2d 342, 433 (2010) (citing Strickland v. Washington,

       466 U.S. 668, 687-88 (1984)). " 'The benchmark for judging any claim of ineffectiveness must

       be whether counsel's conduct so undermined the proper functioning of the adversarial process

       that the trial cannot be relied on as having produced a just result.' " People v. Albanese, 104 Ill.

       2d 504, 525-26 (1984) (quoting Strickland, 466 U.S. at 686).

¶ 18          Taylor's argument is premised on his belief that Illinois law allows a defendant who is

       acting in imperfect self-defense to escape responsibility for attempted first degree murder. But

       the law is not so clear. In People v. Reagan, 99 Ill. 2d 238, 240 (1983), our supreme court held

       that the offense of attempted voluntary manslaughter did not exist in Illinois because a defendant

       cannot intend to kill without lawful justification while simultaneously having an unreasonable

       belief in the need to use force in self-defense. See also People v. Lopez, 166 Ill. 2d 441, 448-49

       (1995) (applying logic of Reagan to conclude that Illinois law does not recognize offense of

       attempted second degree murder). From this, however, it does not necessarily follow that a

       defendant who has an unreasonable belief in the need to use force cannot be convicted of

       attempted first degree murder. Indeed, shortly after Taylor's trial concluded, this court rejected

       that very proposition. See People v. Guyton, 2014 IL App (1st) 110450, ¶ 46 (affirming

       defendant's conviction for attempted first degree murder notwithstanding that evidence

       demonstrated he was acting in imperfect self-defense).

¶ 19          But in light of our holding that the trial court did not err in finding there was not even

       slight evidence supporting an instruction on defense of others, we need not resolve this issue.

       Absent evidence tending to show that Taylor was acting in defense of others, he cannot be

       entitled to an instruction premised on a finding that his belief in the need to defend others was




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       unreasonable. Thus, Taylor's claim that counsel was ineffective for failing to seek such an

       instruction fails.

¶ 20           Next, Taylor alleges error in the trial court's refusal to consider sentencing him as a Class

       1 offender pursuant to section 8-4(c)(1)(E) of the Criminal Code, which we have quoted above.

       The trial court found this section inapplicable, reasoning that "as you read the statute itself, the

       very last part which basically, had the individual defendant therefore killed, the defendant would

       have negligently or accidentally caused the death. There's no negligent or accidentally here." In

       other words, the trial court understood the statute to require Taylor to prove that he intentionally

       attempted to kill Depratto due to serious provocation, but that, had he been successful, the killing

       would have been deemed negligent or accidental. Taylor argues, and the State concedes, that

       this interpretation is incorrect. We agree.

¶ 21           Resolution of this issue is a matter of statutory interpretation, which presents a question

       of law that we review de novo. People v. Chapman, 2012 IL 111896, ¶ 23. Any interpretation of

       a statute necessarily begins with the understanding that our primary role is to give effect to the

       intent of the legislature. Id. The best indication of legislative intent is the language of the statute

       itself, and if that language is clear on its face, it is unnecessary to resort to other aids of

       construction. Brucker v. Mercola, 227 Ill. 2d 502, 513 (2007).

¶ 22           Here, the statutory language clearly addresses two separate scenarios. First, it addresses

       the scenario where the defendant attempts to kill the one who provoked him, and second, it

       addresses the "transferred intent" scenario where the defendant specifically intends to kill his

       provoker, but instead takes a substantial step towards killing another, whose death, had it

       occurred, would have been deemed negligent or accidental. Under either circumstance, provided




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       that the defendant was seriously provoked and acting under intense passion, he is entitled to a

       classification reduction for sentencing purposes.

¶ 23          The trial court's interpretation would make it impossible for a defendant convicted of

       attempted murder to obtain a reduction in classification based on provocation and render the

       statute meaningless. Attempted murder requires a showing that a defendant had the specific

       intent to kill (see People v. Hill, 276 Ill. App. 3d 683, 687 (1995)), which is fundamentally

       incompatible with the statutory language providing that if the defendant's victim died, the death

       would have been deemed negligent or accidental. Taylor's interpretation of the statute as

       referring both to the situation where the defendant attempts to kill his provoker as well as the

       separate situation where the defendant negligently or accidentally acts against another in his

       attempt to kill his provoker better conforms to legislative intent. See Valfer v. Evanston

       Northwestern Healthcare, 2016 IL 119220, ¶ 22 ("We will *** avoid a construction of a statute

       that renders any portion of it meaningless.").

¶ 24          But this conclusion does not end our inquiry, as the trial court alternatively held that

       Taylor was not acting under a sudden and intense passion so as to entitle him to a classification

       reduction in any event. We review the trial court's sentencing decision for an abuse of discretion.

       People v. Fern, 189 Ill. 2d 48, 53 (1999).

¶ 25          In reaching its decision, the trial court reasoned "There was no intense passion. The

       vehicle was stopped. The vehicle wasn't moving. He initially saw her trying to start it, but the

       vehicle didn't start. The vehicle didn't move. He went there and shot her." But the fact that the

       car was stopped, while relevant to the inquiry of whether danger was ongoing for purposes of

       self-defense or defense of others, has no bearing on whether Taylor was "acting under a sudden

       and intense passion." Instead, the passion under which Taylor acted stemmed from witnessing



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       Depratto drive her car at a speed of 30 to 35 miles per hour into the car carrying his daughter.

       Taylor evinced this passion by exclaiming "you tried to kill my kid," as he ran from his mother's

       yard to shoot Depratto. These events took place in quick succession, leaving little time for

       Taylor's anger to subside. While we are mindful of the deference we owe to the trial court's

       findings on issues of fact, the evidence leads us to conclude that Taylor was indeed acting under

       a sudden and intense passion when he shot Depratto, and the trial court's decision to the contrary

       was an abuse of discretion. See People v. Rivera, 2013 IL 112476, ¶ 37 (trial court abuses its

       discretion where decision is "arbitrary, fanciful, or unreasonable to the degree that no reasonable

       person would agree with it").

¶ 26          Of course, the fact that Taylor was impassioned, standing alone, is insufficient to entitle

       him to a classification reduction. See 720 ILCS 5/8-4(c)(1)(E) (West 2012) (requiring showing

       of serious provocation); cf. People v. Garcia, 165 Ill. 2d 409, 429 (1995) ("[P]assion on behalf of

       the defendant, no matter how violent, will not relieve the defendant of culpability for first degree

       murder unless it is engendered by provocation which the law recognizes as reasonable."). The

       parties dispute whether Taylor made the requisite showing under the statute that he was seriously

       provoked by Depratto. However, because the trial court (erroneously) concluded that Taylor was

       not acting under a sudden and intense passion, it did not reach the issue of provocation. Nothing

       herein should be considered as an indication of what the finding should be on the issue of

       provocation. Therefore, we remand for the trial court to make this factual determination in the

       first instance. See People v. Tramble, 2012 IL App (3d) 110867, ¶¶ 17-18 (remanding for trial

       court to make factual findings in accordance with correct interpretation of statute).

¶ 27          Finally, Taylor challenges certain fines and fees the court imposed. Specifically, Taylor

       contends that the imposition of the $2 Public Defender Records and Automation Fee (55 ILCS



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       5/3-4012 (West 2012)), and the $2 State's Attorney Record Automation Fee (55 ILCS 5/4-

       2001.1(c)(West 2012)), violates the prohibition on ex post facto laws, as both assessments were

       enacted in 2012, after Taylor committed these crimes.

¶ 28          As noted, Taylor did not challenge any of the fines and fees imposed by the trial court at

       the time of sentencing. The State has addressed the merits of Taylor's argument despite the

       forfeiture. Had the State argued forfeiture, we would have been hard-pressed to overlook it,

       given the insubstantial nature of the fees assessed. See Ill. Sup. Ct. R. 615(a) ("Any error,

       defect, irregularity, or variance which does not affect substantial rights shall be disregarded.").

       And the rubric typically employed by appellate counsel – that the judgment imposing allegedly

       improper fines and fees is void – is no longer viable in light of People v. Castleberry, 2015 IL

       116916, ¶ 17 (abrogating rule that sentence not conforming to statutory requirements is void).

       We encourage trial counsel to address such claimed errors in the trial court instead of risking

       forfeiture on appeal. But because the State did not argue forfeiture in this case, we will address

       the claims on their merits.

¶ 29          We have previously held that the ex post facto doctrine does not apply to these

       automation fees, because they are compensatory rather than punitive. See People v. Rogers,

       2014 IL App (4th) 121088, ¶ 30 ("'The prohibition against ex post facto laws applies only to laws

       that are punitive.'") (quoting People v. Dalton, 406 Ill. App. 3d 158, 163 (2010)); see also People

       v. Reed, 2016 IL App (1st) 140498, ¶¶ 16-17 (automation fees are compensatory). While Taylor

       argues that the automation charges are fines – not fees – he cites no authority for that

       proposition, and thus we conclude that the ex post facto doctrine does not prohibit the assessment

       of these charges.




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¶ 30           Nevertheless, as the State notes, because Taylor was represented by private counsel

       during trial, the $2 Public Defender Records Automation Fee is inapplicable, and we vacate the

       same.

¶ 31           Taylor also challenges the $25 Court Services Fee, contending that it is inapplicable to

       him. But this contention is based on a misreading of the statute, which provides, in relevant part:

               "In criminal, local ordinance, county ordinance, traffic and conservation cases,

               such fee shall be assessed against the defendant upon a plea of guilty, stipulation

               of facts or findings of guilty, resulting a judgment of conviction, or order of

               supervision, or sentence of probation without entry of judgment pursuant to

               Section 10 of the Cannabis Control Act, Section 410 of the Illinois Controlled

               Substances Act, Section 70 of the Methamphetamine Control and Community

               Protections Act, Section 12-4.3 or subdivision (b)(1) of Section 12-3.05 of the

               Criminal Code of 1961 or the Criminal Code of 2012, Section 10-102 of the

               Illinois Alcoholism and Other Drug Dependency Act, Section 40-10 of the

               Alcoholism and Other Drug Abuse and Dependency Act, or Section 10 of the

               Steroid Control Act." 55 ILCS 5/5-1103 (West 2012).

¶ 32           Taylor argues that because he was not convicted under the enumerated provisions of the

       specified acts, his fee was improperly assessed. But we have rejected this reading of the statute,

       noting "It is clear that the statute permits assessment of this fee upon any judgment of conviction,

       but also permits such assessment for orders of supervision or probation, made without entry of a

       judgment of conviction, for certain limited and enumerated criminal provisions." People v.

       Williams, 2011 IL App (1st) 091667-B, ¶ 18 (emphasis added); see also People v. Anthony, 2011




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       IL 091528-B, ¶¶ 26-27. We see no reason to depart from these holdings, and conclude that the

       court services fee was properly assessed against Taylor.

¶ 33                                           CONCLUSION

¶ 34          For these reasons, we affirm Taylor's conviction, vacate the $2 Public Defender Records

       Automation Fee, and remand for resentencing on the attempted murder conviction.

¶ 35          Conviction affirmed; remanded for resentencing.




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