Filed 9/22/20 P. v. Lomeli CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B297259
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA113917)
v.
JOSE LOUIS LOMELI et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County. Steven D. Blades, Judge. Affirmed with
directions.
David Y. Stanley, under appointment by the Court of
Appeal, for Defendant and Appellant Jose Louis Lomeli.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant Juan Carlos Quinarez.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendants and appellants Jose Louis Lomeli and Juan
Carlos Quinarez were convicted by jury of murder and attempted
murder in a gang-related shooting. Gang and firearm use
allegations were found true. The jury also found Lomeli guilty of
numerous additional felonies arising from his efforts to evade
arrest. Defendants were both sentenced to multiple
indeterminate terms.
We agree with Lomeli that the trial court must correct its
sentencing minute order to accurately reflect a second strike
sentence and not a third strike sentence. However, we otherwise
reject the contentions raised by both defendants and affirm their
convictions in their entirety.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Events of June 10 and 11, 2016
On the evening of June 10, 2016, A.M-L. and J.E. went to a
small house party to celebrate the birthday of their friend, A.L.
The party was mostly attended by family members, including
A.L.’s parents and his brother G.L.1
Sometime after midnight, in the early morning hours of
June 11, A.M-L. and J.E. decided to head home. They walked
across the street to where J.E.’s car was parked and got in.
Before they could pull away from the curb, an SUV pulled
alongside them and stopped.
G.L., who had remained in the front yard as his friends
walked across the street, saw a white SUV drive down the street,
make a quick U-turn and park close to J.E.’s car. A.L. had gone
inside the house but ran back out when he heard tires screeching.
1 We refer to the victims and witnesses by their initials to
protect their privacy.
2
Both G.L. and A.L. heard yelling—some sort of altercation.
Concerned for their friends, they started walking toward where
the cars were parked.
Three people, two wearing hoodies and one wearing a hat,
got out of the SUV and asked A.M-L. and J.E. where they were
from. A.M-L. understood the question as asking whether they
belonged to a gang. A.M-L. said they were from nowhere. J.E.
got out of the car and exchanged words with the individuals and
very quickly a physical altercation erupted between J.E. and one
of the individuals from the SUV. J.E. looked like he needed help
so A.M-L. got out of the car. Almost immediately after
confronting one of the individuals, shots rang out. A.M-L. was hit
multiple times and fell to the ground, as did J.E.
G.L. saw someone fighting with J.E. and another person
fighting with A.M-L. right before the shooting started. G.L.
started to run in the direction of his friends, but the shooter then
turned toward him. Both he and his brother saw muzzle flashes,
so they turned and ran in the opposite direction to take cover.
After the SUV fled, A.L. and G.L. ran back to where J.E.
and A.M-L. lay in the street. J.E. appeared dead. A.M-L. looked
bad and was gasping for air. G.L. jumped into J.E.’s car and
drove off, hoping to find the SUV. He was unable to find the SUV
but caught the attention of a patrol car and drove back to the
crime scene.
J.E. died from the gunshot wounds he received. A.M-L.
received multiple nonfatal gunshot wounds, including to his right
arm and shoulder, his left hip, the left side of his head and his
chin.
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2. Testimony of Megan Anzelde
In June 2016, Megan Anzelde was dating Lomeli. At the
time, Lomeli was the leader of the Townsmen criminal street
gang with the nickname Villain. She knew Quinarez by his gang
moniker, Loco. Lomeli was known for always carrying a loaded
nine-millimeter handgun. Ms. Anzelde saw Lomeli habitually
carry it openly in front of Quinarez.
On the night of June 10, 2016, Ms. Anzelde was with
Lomeli, Quinarez and two other Townsmen gang members, Jesse
Nunez, known as Crooks, and the other known as Dreamer.
They were at Dreamer’s house drinking, doing drugs
(methamphetamine) and hanging out. At some point, Lomeli
said that the younger gang members (including Quinarez and
Nunez) needed some “schooling” and needed to be shown what
“old school gang banging was about.” He was holding his
handgun at the time.
Sometime after midnight, Ms. Anzelde, Lomeli, Quinarez
and Nunez left Dreamer’s house in a white SUV driven by
Ms. Anzelde. Lomeli was in the front passenger seat and Nunez
and Quinarez were seated behind them.
Ms. Anzelde heard either Quinarez or Nunez say that
someone was “hitting up” a wall, meaning someone was writing
graffiti. They were in Townsmen territory. Lomeli told
Ms. Anzelde to make a U-turn, turn off her headlights and go
back. She complied.
Ms. Anzelde saw two males (whom she did not recognize)
“jogging” across the street toward a parked car. She stopped the
SUV next to the car, but kept the engine running. Lomeli,
Quinarez and Nunez got out. Lomeli asked the two men where
they were from. One of them replied they were from nowhere.
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Lomeli then said, “Townsmen” and the man standing next
to the driver’s side of the car (J.E.) replied “Fuck Townsmen.”
A fistfight erupted. Ms. Anzelde did not see who threw the first
punch. Everything happened very fast. All five men were
moving around in close quarters, but her attention was on
Lomeli. At some point, Lomeli hit J.E. in the head with the butt
of his handgun, and he fell down. The other man (A.M-L.) then
started wrestling with Lomeli in an apparent attempt to wrest
the gun from him. Lomeli shot A.M-L. and then shot J.E. as he
started to get up from the ground. Lomeli fired multiple shots,
possibly around 10.
Neither Quinarez nor Nunez returned to the SUV. They
ran down the street in the direction of Quinarez’s house.
Ms. Anzelde and Lomeli later learned Quinarez had been shot in
the shoulder during the fight and went to a hospital in West
Covina for treatment.
Lomeli got back into the SUV. His hands and clothes had
blood on them. He told Ms. Anzelde to drive and then
immediately told her to stop. He said he forgot his hat and
jumped out to look for it. Lomeli had been wearing a hat with the
letter “T” on it signifying the Townsmen gang. Ms. Anzelde
heard a few more gunshots and then Lomeli returned to the SUV
with a hat in his hand. He told her to drive to his grandmother’s
house but then realized he had the wrong hat and told
Ms. Anzelde to turn around and go back to the crime scene. She
refused because she was too scared and kept driving to Lomeli’s
grandmother’s house. The hat was later found at the crime
scene.
The next day, Ms. Anzelde and Lomeli cleaned the blood
spatter from the exterior and interior of the SUV, borrowed some
5
money from a friend and fled to Arizona. Before they left, Lomeli
reloaded his handgun. They stayed with one of Lomeli’s friends
in Arizona for a few weeks, and while they were there, Lomeli
sold the handgun. Lomeli and Ms. Anzelde drove back to
California a short time later, returning to the home of Lomeli’s
grandmother.
Ms. Anzelde said that after they returned to California,
Lomeli took the SUV one day, evaded police and eventually
abandoned it on the road. Shortly thereafter, with Ms. Anzelde
in tow, Lomeli stole a jeep in Claremont and led police on a high
speed chase. Eventually, he crashed the jeep and fled.
Ms. Anzelde was taken into custody. She spoke with police and
told them about the shooting incident in June and that Lomeli
and Quinarez were involved. She warned the police that Lomeli
did not want to be arrested or return to prison and that he was
carrying a .45-caliber handgun he had obtained from his uncle.
3. Additional Evidence
An autopsy revealed J.E. suffered multiple gunshot
wounds, including a fatal shot to his head. He also had a
laceration on his scalp consistent with blunt force trauma.
Detective Karen Shonka and her partner, Wayne Holston,
testified about the investigation. Less than a week after the
shootings, they interviewed A.M-L. after he was released from
the hospital. The audio recording of the interview was played for
the jury. During the interview, A.M-L. explained how the SUV
pulled up next to them and caught them by surprise. He said
everything happened very fast and that after the fistfight erupted
when J.E. got out of the car, he saw one of the other guys “going
towards” J.E. That was when he decided to get out of the car and
6
try to help J.E. A.M-L. “started fighting with them” and almost
immediately he was shot.
Detective Shonka testified that A.M-L. made a circle or
something like a sideways “V” with his fingers in describing how
the two other individuals from the SUV closed ranks behind the
person fighting with J.E.
The detectives received information from another law
enforcement entity working an unrelated case in which a wiretap
had been authorized on a gang member known as Shyboy. They
intercepted a phone call between Lomeli and Shyboy on June 11,
2016. An audio recording of the phone call was provided to the
detectives. In the recording, Lomeli makes numerous references
to the shootings, including referring to the victims as dogs, saying
“Loco” and “Crooks” were there, expressing anxiety about having
been sweaty and leaving his hat behind, and needing to get out of
town.
Excerpts of the call were played for the jury. Ms. Anzelde
identified her voice and that of Lomeli on the recording and
explained that the call occurred while she and Lomeli were
driving to Arizona.
Numerous nine-millimeter shell casings were found at the
scene. Testing revealed that samples taken from the hat with the
“T” logo found at the crime scene were consistent with Lomeli’s
DNA profile.
Detective Armando Orellana testified as the prosecution’s
gang expert. He stated his opinion that Lomeli and Quinarez
were members of the Townsmen gang, as was Jesse Nunez. He
described the gang’s signs and use of the Texas Rangers “T” logo,
and said the shooting occurred in territory claimed by the
Townsmen gang. He also testified about gang culture generally,
7
including that gang members engage in crimes together to back
each other up and to strengthen the reputation of the gang.
Testimony was received, including from officers with the
Claremont and West Covina Police Departments, about the two
different high speed pursuits involving Lomeli that eventually
resulted in his arrest in August 2016.
4. The Charges and Motion to Consolidate
Lomeli and Quinarez were charged with one count of
murder (Pen. Code, § 187, subd. (a); count 1), and three counts of
attempted murder (§§ 187, subd. (a), 664; counts 2-4). Lomeli
was also charged with one count of being a felon in possession of
a firearm (§ 29800, subd. (a)(1); count 5) and with having suffered
a prior strike within the meaning of the “Three Strikes” law.
Gang and firearm use allegations were also pled (§§ 186.22,
12022.53, subds. (b)-(e)(1)).
Ms. Anzelde was originally charged as a codefendant. She
subsequently agreed to plead guilty and testify against Lomeli
and Quinarez pursuant to a leniency agreement. According to
the terms of her agreement, if she testified truthfully against her
codefendants, she would receive a sentence of seven years.
Prior to trial, the court granted the prosecution’s request to
consolidate the 10 additional charges against Lomeli arising from
his efforts to evade arrest on August 24 and August 28, 2016:
two counts of fleeing a police vehicle and driving against traffic
(Veh. Code, § 2800.4; counts 7 & 10), two counts of taking a
vehicle without consent (Veh. Code, § 10851; Pen. Code, § 666.5;
counts 8 & 15), one misdemeanor count of resisting or obstructing
a peace officer (Pen. Code, § 148, subd. (a); count 9), one count of
fleeing a police vehicle recklessly (Veh. Code, § 2800.2; count 11),
one count of carrying a loaded firearm with a prior (Pen. Code,
8
§ 25850, subd. (a); count 12), one count of being a felon in
possession of a firearm (Pen. Code, § 29800, subd. (a)(1);
count 13), one count of being in unlawful possession of
ammunition (Pen. Code, § 30305, subd. (a)(1); count 14), and
one count of resisting an executive officer (Pen. Code, § 69;
count 16). (There was no count 6.)
The case proceeded to a joint jury trial in September 2018.
5. The Verdict and Sentencing
The jury found Lomeli guilty on all counts and found true
all of the gang and firearm use allegations. The jury found
Quinarez guilty of murder (count 1) and the attempted murder of
A.M-L. (count 2), and found true the gang and firearm use
allegations as to those two counts. The jury acquitted Quinarez
of the attempted murders of A.L. and G.L.
At the bifurcated bench trial, Lomeli admitted he suffered a
conviction for assault in 2009 that qualified as a strike under the
Three Strikes law and as a serious felony for purposes of Penal
Code section 667, subdivision (a)(1). Counsel joined in and
stipulated to a factual basis for the admission.
The court sentenced Lomeli to six consecutive life terms
with a minimum sentence of 160 years, plus an aggregate
determinate term of 23 years eight months. The court imposed
various fines and fees and awarded defendant 1,096 actual days
of presentence custody credits.
The court sentenced Quinarez to four consecutive life terms
with a minimum sentence of 82 years. The court imposed various
fines and fees and awarded defendant 970 actual days of
presentence custody credits. Before sentencing Quinarez, the
court accepted his evidentiary submissions pursuant to Penal
Code section 3051, including a report from Dr. Nancy Kaiser-
9
Boyd. The prosecution requested that the record reflect Quinarez
had gotten additional gang-related tattoos while in custody.
This appeal followed.
DISCUSSION
1. Defendant Lomeli
It is undisputed Lomeli was duly advised and voluntarily
waived his constitutional jury trial rights before admitting his
prior conviction. The only claim of error Lomeli asserts on appeal
is the court committed prejudicial error by failing to advise him of
the penal consequences of admitting his prior conviction. The
contention has been forfeited because Lomeli, who was
represented by counsel at all relevant times, did not object on
these grounds in the trial court.
“[U]nlike the admonition required for a waiver of
constitutional rights, advisement of the penal consequences of
admitting a prior conviction is not constitutionally mandated.
Rather, it is a judicially declared rule of criminal procedure.
[Citations.] Consequently, when the only error is a failure to
advise of the penal consequences, the error is waived if not raised
at or before sentencing. [Citation.] Such policies ensure the fair
and orderly administration of justice.” (People v. Wrice (1995)
38 Cal.App.4th 767, 770-771, italics added; see also In re Yurko
(1974) 10 Cal.3d 857, 864 [requirement to advise of penal
consequences of prior convictions is “judicially declared rule of
criminal procedure”].) The purpose underlying the doctrines of
waiver and forfeiture is to encourage defendants to raise
objections and bring errors to the attention of the trial court so
that they may be timely corrected or avoided altogether. (Ibid.)
The contention is not only waived, but there is nothing in
the record to suggest Lomeli was prejudiced. (In re Yurko, supra,
10
10 Cal.3d at p. 864 [the failure to advise a defendant of penal
consequences of plea is error and “if prejudice appears” requires
the setting aside of finding as to truth of prior conviction]; People
v. Karis (1988) 46 Cal.3d 612, 650 [same].) Nothing in the record
suggests that if the court had admonished Lomeli about the penal
consequences of the prior strike, he would have chosen to proceed
to a bench trial on the prior conviction, or that the prosecution
could not prove the prior conviction beyond a reasonable doubt.
Lomeli argues in the alternative that if we do not reverse
and remand for a new sentencing hearing, then we should order
the superior court to correct its minutes which erroneously refer
to the case as a “Third Strike case” instead of a “Second Strike
case.” Respondent concedes the minute order should be
corrected.
We agree the sentencing minute order must be corrected
and order the superior court to make the necessary corrections to
its minutes. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts
have inherent power to correct clerical errors to make records
reflect true facts].)
2. Defendant Quinarez
Quinarez contests the adequacy of the evidence supporting
his convictions as an aider and abettor in the murder of J.E. and
the attempted murder of A.M-L. “In assessing a claim of
insufficiency of evidence, the reviewing court’s task is to review
the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (People v. Rodriguez (1999) 20
Cal.4th 1, 11.) “The standard of review is the same in cases in
11
which the prosecution relies mainly on circumstantial evidence.”
(Ibid.) The record contains ample evidence of Quinarez’s guilt.
To be held liable as an aider and abettor, one need not
personally participate in the elements of the crime. (People v.
Morante (1999) 20 Cal.4th 403, 433.) It is sufficient if, knowing of
the direct perpetrator’s unlawful intent, one assists or encourages
the commission of the crime. (Ibid.) “ ‘Intent is rarely
susceptible of direct proof and usually must be inferred from the
facts and circumstances surrounding the offense.’ ” (People v.
Johnson (2019) 32 Cal.App.5th 26, 58.) Presence at the scene,
companionship, and conduct before and after the offense are
relevant factors in resolving the question of aiding and abetting
liability. (People v. Campbell (1994) 25 Cal.App.4th 402, 409
[presence near direct perpetrator in order to intimidate victim,
divert suspicion or watch out for others “is a textbook example of
aiding and abetting”].)
The testimony of G.L., A.L., Ms. Anzelde, Detective
Shonka, A.M-L. and the gang expert was more than enough to
support a reasonable inference that Quinarez was directly
assisting Lomeli in his attack on, and the eventual shooting of,
the two victims. His presence before the crimes and his conduct
at the scene in backing up Lomeli and fighting with A.M-L. was
sufficient evidence upon which the jury could reasonably rest its
verdict.
Quinarez next contends the trial court erred in
consolidating for trial the additional charges against Lomeli
stemming from his efforts to evade arrest. He argues the jury
was unduly influenced into convicting him on the murder and
attempted murder charges based on his association with Lomeli,
12
the older gang member who had engaged in numerous violent
offenses. We are not persuaded.
Plainly a joint trial of defendants on the murder count and
the three counts of attempted murder was proper. (Pen. Code,
§ 1098 [“When two or more defendants are jointly charged with
any public offense . . . , they must be tried jointly, unless the
court order separate trials”].) The court’s order consolidating the
additional charges against Lomeli did not render the joint trial
fundamentally unfair or otherwise result in undue prejudice to
Quinarez.
Most of the testimony at trial came from A.M-L., Detective
Shonka, G.L., A.L., Ms. Anzelde and the prosecution’s gang
expert describing the unprovoked gang attack on J.E. and A.M-L.
The additional, relatively brief testimony regarding Lomeli’s
flight and efforts to twice evade police capture was not more
inflammatory or of such a quality as to improperly influence the
jury into convicting Quinarez because of Lomeli’s additional
misdeeds.
Indeed, the jury acquitted Quinarez of the attempted
murder charges in counts 3 and 4 (the shooting at A.L. and G.L.).
The jury’s ability to differentiate between the defendants and the
charges reflects careful, discriminating deliberations. (See, e.g.,
People v. Gomez (2018) 6 Cal.5th 243, 277-278 [jury’s findings of
guilt on one charge and the inability to reach a verdict on another
suggested it “ ‘ was capable of, and did, differentiate among ’ ”
and was not unduly influenced by joinder]; People v. Mackey
(2015) 233 Cal.App.4th 32, 105 [same].)
Quinarez also contends the trial court had a sua sponte
duty to instruct on manslaughter because the evidence supported
a finding the shooting was the result of heat of passion. We
13
independently review whether a trial court erroneously failed to
instruct on a lesser included offense. (People v. Nelson (2016)
1 Cal.5th 513, 538 (Nelson).) We find no such error.
“ ‘Murder is the unlawful killing of a human being . . . with
malice aforethought.’ ([Pen. Code,] § 187, subd. (a).)
‘Manslaughter is the unlawful killing of a human being without
malice.’ (§ 192, subd. (a).) Manslaughter is a lesser included
offense of murder, and a defendant who commits an intentional
and unlawful killing but who lacks malice is guilty of voluntary
manslaughter. Heat of passion is one of the mental states that
precludes the formation of malice and reduces an unlawful killing
from murder to manslaughter.” (Nelson, supra, 1 Cal.5th at
p. 538.)
The trial court’s obligation to instruct on all principles of
law relevant to the issues raised by the evidence at trial includes
the obligation to instruct on any lesser included offenses. (People
v. Smith (2013) 57 Cal.4th 232, 239.) However, no duty to
instruct arises unless there is substantial evidence to support a
jury finding on the lesser offense. A lesser included instruction is
warranted “ ‘only if there is substantial evidence from which a
jury could reasonably conclude that the defendant committed the
lesser, uncharged offense, but not the greater, charged offense.’ ”
(Nelson, supra, 1 Cal.5th at p. 538.)
During the parties’ discussion of jury instructions with the
court, the court said it did not see any evidence of voluntary
manslaughter and specifically asked defense counsel if he was
requesting such an instruction. Defense counsel said he was not.
That is not surprising given the evidence discussed above, and
because Quinarez’s theory of the case was that he did not do
anything to aid and abet Lomeli, whether he acted with
14
premeditation or under heat of passion. “Generally, when a
defendant completely denies complicity in the charged crime,
there is no error in failing to instruct on a lesser included
offense.” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709.)
Here, there is no credible evidence suggesting any
objectively reasonable provocation to support a manslaughter
instruction. For manslaughter to come into play, “the victim’s
conduct must have been sufficiently provocative to cause an
ordinary person of average disposition to act rashly or without
due deliberation and reflection. [Citation.] The standard is not
the reaction of a ‘reasonable gang member.’ ” (People v. Enraca
(2012) 53 Cal.4th 735, 759.) The Supreme Court has consistently
rejected arguments that “insults or gang-related challenges” are
sufficient provocation to warrant instruction on voluntary
manslaughter. (Ibid.)
Quinarez argues that J.E.’s retort of “Fuck Townsmen” was
more than a gang taunt and was the equivalent of saying “Fuck
you.” Whether it was a gang taunt or a personal insult, hearing
“Fuck you” would not cause an ordinary person to fly into a
homicidal rage. There was no duty to give a manslaughter
instruction.
Finally, Quinarez argues the trial court should have
considered his age as a mitigating factor at sentencing and the
failure to do so resulted in a denial of due process, equal
protection and a lengthy sentence that violates the Eighth
Amendment’s proscription against cruel and unusual
punishment. We are not persuaded.
Quinarez did not raise any objection on this ground in the
trial court and has therefore forfeited the contention. (See, e.g.,
People v. Baker (2018) 20 Cal.App.5th 711, 720.)
15
In any event, the contention is without merit. Quinarez
was almost 19 years old, an adult at the time he committed these
despicable crimes. As our Supreme Court has explained,
“ ‘[d]rawing the line at 18 years of age is subject, of course, to the
objections always raised against categorical rules. The qualities
that distinguish juveniles from adults do not disappear when an
individual turns 18. By the same token, some under 18 have
already attained a level of maturity some adults will never reach.’
(Roper [v. Simmons (2005) 543 U.S. 551,] 574.) But ‘[t]he age of
18 is the point where society draws the line for many purposes
between childhood and adulthood’ (ibid.), and that is the line the
high court has drawn in its Eighth Amendment jurisprudence.”
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1380.) Quinarez has
not demonstrated his sentence violates the Eighth Amendment
proscription against cruel and unusual punishment.
Quinarez was not denied due process. The trial court
provided defendant time to submit evidence in accordance with
Penal Code section 3051 which provides a mechanism for early
parole eligibility for youthful offenders. As relevant here,
section 3051, subdivision (b)(3) provides that “[a] person who was
convicted of a controlling offense that was committed when the
person was 25 years of age or younger and for which the sentence
is a life term of 25 years to life shall be eligible for release on
parole at a youth offender parole hearing during the person’s
25th year of incarceration.”
Quinarez will have “a meaningful opportunity for release”
no more than 25 years into his term of incarceration. (People v.
Franklin (2016) 63 Cal.4th 261, 277.)
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DISPOSITION
The trial court is ordered to correct its sentencing minute
order as to defendant and appellant Jose Louis Lomeli to
accurately reference a second strike case and not a third strike
case. The judgment of conviction as to Jose Louis Lomeli is
affirmed in all other respects.
The judgment of conviction as to defendant and appellant
Juan Carlos Quinarez is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.
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