Plea Bargaining Becomes the Currency of the Courts : Legal system: Authorities say deals for lighter sentences are necessary to cope with overload of cases.

TIMES STAFF WRITER

The overwhelming majority of criminal cases heard today in Los Angeles County Superior Court end in "plea bargains," with defendants agreeing to plead guilty in exchange for prison and jail terms that are among the lightest in America.

Local judges and prosecutors rarely impose the letter of the law on common street robbers, burglars and many other felons who serve relatively brief sentences, commit new crimes and again end up serving little time.

Even when accused of the most serious crimes, defendants are almost always offered incentives to plead guilty and avoid trials, where their sentences probably would be harsher. Between 1980 and 1988, the median prison sentence prescribed for all crimes by California judges was 36 months, according to the most recent figures available from the state's Board of Prison Terms.

During the same period in Los Angeles County, the median prison sentence dropped from 36 months to 28. Only two other counties in the 17-county survey, San Francisco and San Joaquin, experienced a steeper decline--from 36 months to 24.

Sentences in Los Angeles appear even more lenient alongside those handed down by judges in major metropolitan areas outside California.

In New York County, for example, rapists were punished by an average of 13 years in prison--5 years longer than in Los Angeles County, according to a study prepared in 1988 by the National Assn. of Criminal Justice Planners. In Chicago, the average drug trafficker went to prison for 4 1/2 years. In Los Angeles, the average was less than three years.

Authorities in Los Angeles say that they have little choice but to trade reduced sentences for guilty pleas because there is not enough time, courtrooms or jail space to vigorously prosecute every accused criminal who might otherwise deserve it.

Such explanations offer little solace to many crime victims or their families.

"They're not dispensing justice in Los Angeles," said retired California Highway Patrol Officer Donald Burkes of Bakersfield. "They're dispensing cases."

His 28-year-old son, Rick, died last year in a one-car accident on Wilshire Boulevard. The driver, Steven Kida, was charged with vehicular manslaughter, drunk driving and hit-and-run. He negotiated a plea bargain, pleaded guilty and was sentenced in January by Superior Court Judge Lance Ito to two years in prison.

The district attorney's office had been willing to give Kida one year in the County Jail and put him on probation before the victim's father protested.

"Two years for a life--it's a gross insult," Burkes said, "not only to me as a parent, but to the state of California, which enacted these laws. . . . I get the feeling that few people down there give a damn. All they care about is the numbers, processing the numbers."

With standard credits for good behavior and working while in custody, the man convicted of killing Burkes' son will spend no more than a year in prison.

"A number of other judges in this courthouse would have given (Kida) straight probation," said Terri Engler, the prosecutor in the case.

Under California's determinate sentencing laws, nearly all felony crimes carry fixed minimum, middle and maximum prison sentences. Vehicular manslaughter is punishable by two- four- or six-year terms.

Statewide, judges in 1989 prescribed minimum sentences 47% of the time when sending convicted criminals to state prison, according to the California Judicial Council.

However, defendants sent to prison from Los Angeles received minimum sentences 59% of the time, The Times found in studying 1,831 felony cases pulled at random from courthouses throughout the county.

The study also found that:

* Only 9% of the defendants bound for prison got maximum sentences, compared to the statewide average of 14%.

* Half of the defendants were given probation and County Jail rather than sent to state prison.

* Twenty percent of those granted probation could have been declared ineligible and sent to prison, based on their records or most recent offenses.

* One quarter of the defendants already were on probation at the time of conviction, and about a third of those were granted probation again.

* With few exceptions, defendants who avoided state prison were sent to County Jail as a condition of probation. The median sentence imposed was six months, which translates today to no more than 74 days in custody.

"We're regurgitating the same people through the system over and over again," said longtime probation officer Mary Ridgeway. "It's all these plea bargains."

Relatively light sentences in Los Angeles are an outgrowth, The Times found, of the plea-bargaining process in which defendants and prosecutors negotiate guilty pleas before trial and judges seal the deals.

Plea bargaining is not a recent innovation, nor is it exclusive to Los Angeles. The 1988 study by the National Assn. of Criminal Justice Planners found that 90% of all felony convictions in court systems nationwide were achieved by guilty plea.

But in Los Angeles, where judges and attorneys insist that the result would be judicial gridlock if any more cases were to go to trial, negotiating with criminal defendants has been taken to even greater extremes.

Local Superior Court statistics show that 94 out of every 100 cases in 1989 were settled by criminal defendants negotiating pleas. Of random cases from 1990 studied by The Times, the rate was 98 out of 100.

The ratio is even more extreme at the Municipal Court level, where misdemeanors are tried.

Last year, of 173,327 cases filed by the Los Angeles city attorney's office, only about 800--less than 0.5%--ended in trials.

With a growing number of defendants and finite resources with which to try them, prosecutors and judges say the choice must be made: who should stand trial and who should get a deal?

By necessity, they say, far more defendants today are dealt incentives to plead guilty so the system can accommodate the never-ending stream of new arrestees, whose crimes may be more grievous.

"We don't have enough courtrooms or judges or prosecutors, and if you're a deputy D.A., you have to move the paper," said veteran Deputy Dist. Atty. David R. Ross. "If you don't move the paper, you're not going to be in that courtroom very long because the judge or your supervisor is going to get rid of you."

The process has become so institutionalized that many within the system no longer call it plea bargaining, preferring instead the euphemism "case management."

"You've got all these cases that you can't possibly manage, and they keep giving you more," said Richard Millard, who was a deputy public defender for 21 years before he quit last year. "And then they ask, 'What's the matter with you? You can't manage your calender?' You wind up having to plead everybody out.

"You're expected to prepare adequately on every case," said Millard, now in private practice, "but nobody (in the public defender's office) has the time anymore. You should never start a trial without having inspected the scene of the crime and interview witnesses, but you rarely do. You're lucky if you can get your investigator to go look at the crime scene."

In the late 1970s, when he joined the public defender's office, Millard said, he would represent two, sometimes three new defendants every week. By the time he resigned last year, he was handling eight to 10.

County Public Defender Wilbur F. Littlefield did not dispute Millard's complaints. In fact, Littlefield said, it is not unusual for his attorneys to juggle as many as 60 felony cases.

There are about 250 defenders assigned to Superior Court, 40% more than in 1980. Nevertheless, individual caseloads have continued to grow despite staffing increases, Littlefield said.

Superior Court judges are experiencing similar pressures.

In the last 10 years, the number of criminal cases in Los Angeles County Superior Court has risen 149%, from 20,588 in 1980 to 51,307 in 1989, according to statistics kept by the court. The number of judges, meanwhile, rose from 196 to 238--a 21% increase.

At the same time, the percentage of defendants taken to trial has been cut in half, from 12% in 1980 to 6% in 1989. That means about 94% of the cases last year were resolved without trials.

Many prosecutors and defense attorneys blame the judges for allowing, if not encouraging, pretrial bargaining.

"The judiciary has become weak," said Stuart Rappaport, who left the Los Angeles County public defender's office in 1987 to become the public defender in Santa Clara County. "Judges don't want to make any decisions because they're afraid somebody will run against them."

Many judges, meanwhile, contend that it is the deputy district attorneys assigned to each case who invariably determine how often defendants are allowed to plead guilty rather than be tried.

"The prosecutor is the key," said Presiding Judge Richard Bryne.

Even when accused of felonies including robbery and murder--crimes that by California law are not normally supposed to be plea bargained--defendants in Los Angeles routinely are offered shorter sentences in exchange for their admitting guilt and avoiding trial.

A law intended to limit plea bargaining in these specifically designated "serious" felonies was passed in 1982 as part of California Proposition 8--the "Victims' Bill of Rights." Prosecutors, the law stipulated, could negotiate settlements only when they felt there was insufficient evidence to prove the case, or when the testimony of a key witness could not be secured or when a reduction or dismissal of charges would not result in a "substantial" change of sentence.

Plea bargaining in serious felony cases is also technically permissible under Proposition 8 if plea agreements are reached before defendants are arraigned in Superior Court.

Of 211 randomly selected, serious felony cases examined by The Times, 204 ended in defendants pleading guilty instead of standing trial.

Of those defendants, 56% received the lightest possible prison terms or jail and probation. Of defendants given less than midterm prison sentences, three-quarters negotiated their guilty pleas after being arraigned in Superior Court.

The district attorney's own policy manual states that prosecutors are to "rigorously and faithfully" follow the mandates of Proposition 8 that limit negotiated settlements.

Dist. Atty. Ira Reiner, however, shrugged when asked about the apparently high percentage of serious felonies being plea bargained.

"If roughly more than 5% (of cases) go to trial, everything shuts down," Reiner said. "The system is functioning--and I suppose you could put quotes around 'functioning'--because only 5% of the cases are going to trial."

The case against rapist Fernando Hernandez never got to trial.

A transient, Hernandez had shared a bottle of cheap wine with a woman acquaintance before dawn on May 17 near County-USC Medical Center. When the woman entered a restroom, Hernandez, 32, followed her, threw her to the floor and began ripping off her clothes, according to police reports. She pulled a knife. He pried it from her hand and pressed the blade against her. She was beaten, bitten, choked and raped.

Witnesses heard her screams and called police. Hernandez eventually was tracked down and arrested.

Records showed that he had been picked up for rape in 1979 in Baldwin Park, but agreed to plead guilty and was convicted of a misdemeanor, unlawful sex with a minor. He was sentenced to a year in County Jail.

In a third incident, he was arrested in June, 1989, after allegedly picking up a hitchhiker in Azusa, taking her to a car wash and raping her at knifepoint in the women's restroom. Police were called and found Hernandez still inside the restroom, wearing his alleged victim's sweater.

Hernandez insisted that the woman had offered to have sex with him for $20 and had complained to police because he did not pay her. The woman had been arrested before for prostitution, records showed. The district attorney's office declined to prosecute, citing insufficient evidence.

When arrested in May in Los Angeles, Hernandez told authorities that his most recent alleged victim, like the one at the car wash in Azusa, had sex with him willingly.

This time, however, Hernandez was charged with forcible rape, which carries a prison term of three, six or eight years. He also was charged with committing "great bodily injury" (which carries an additional five years in prison) and possessing and using a deadly weapon (which carries three more years).

In all, Hernandez was facing a maximum 16-year sentence.

"He's a danger to the community and should be imprisoned for as long a period as possible," Deputy Probation Officer Joan E. Fujishiro told the court.

Rape is a crime that falls within the plea-bargaining restrictions of Proposition 8, but Hernandez's case fell outside Proposition 8 limitations because he agreed to plead guilty before being arraigned in Superior Court, records indicate. Deputy Dist. Atty. Linda Reisz dropped all but the basic rape charge and recommended that he receive the low-term sentence.

Instead of 16 years, Hernandez got three. With the 41 days he spent in jail while awaiting trial, plus various custody credits, he will serve about 18 months.

Reisz declined to discuss the case except to say that, "Certain facts warrant certain dispositions. This was an appropriate disposition, given the facts."

Detective Joseph Linares, the investigating officer on the case, was not so sure. Though hesitant to openly criticize Reisz's decision to not take the case to trial, he noted that the victim seemed credible and willing to testify. The evidence, he said, seemed solid.

"I thought it was shaping up well," Linares said. "I would have liked it to go to a jury trial, but what can you do? It could have gone to a jury and he could have got off. At least he got some time."

To increase the prison time served by criminals who commit particularly dangerous crimes or are repeat offenders, the California Legislature has passed dozens of laws called "special allegations."

The Times' study found 886 defendants who qualified for one or more special allegations based on their criminal records or most recent offenses.

But in 37% of the cases, no special allegations were alleged. In cases where special allegations were filed, they were dropped more than 80% of the time after defendants pleaded guilty.

Deputy Dist. Atty. Ross, who wrote the district attorney's office guidelines on special allegations, blamed the complexity of the law and the inexperience of prosecutors when asked why more defendants are not charged with special allegations.

Many prosecutors, Ross said, "don't know about them. Quite frankly, we don't have experienced lawyers. Most of the ones we have would not be qualified to act as defense counsel. They don't hang around long enough. The salaries and benefits are not attractive enough." The starting salary for a deputy district attorney in Los Angeles is $39,279.

Defense attorneys complain that even when special allegations are filed, prosecutors often use them merely as bargaining chips--piling them up, then trading them in for guilty pleas.

The result, defense attorneys say, is that pleading guilty can become almost irresistible, even for defendants who are not guilty.

Such leverage may help prosecutors secure convictions by guilty pleas, but that was hardly the intent among legislators who have enacted the special laws.

"We pass these laws to keep criminals away from society longer," said state Sen. Ed Davis (R-Santa Clarita), a former Los Angeles police chief and vice chairman of the Senate's Judiciary Committee.

"The D.A. shouldn't tolerate this," Davis said. "If he really did what the law told him to do, these guys wouldn't be circulating out on the street and back through the courts all the time."

Dist. Atty. Reiner agreed that his office should press for special allegations when appropriate.

"That's exactly what we should be doing," Reiner said. "Does the system do that? No, it doesn't do that because of the volume (of cases) and the pressures that puts on everybody."

Authorities in many other counties, where caseloads are not as high, take a markedly different tack when it comes to special allegations and plea negotiations.

In Ventura County, longtime Dist. Atty. Michael D. Bradbury has a "no plea bargain" policy, which mandates that "provable special allegations and enhancements shall be alleged and, unless admitted, proved."

The percentage of cases disposed of by guilty plea in Ventura County does not vary dramatically from Los Angeles, but the length of sentence imposed on nearly all crimes differs substantially.

The median prison sentence for all crimes prosecuted in Ventura County was 48 months--20 months longer than in Los Angeles County, according to 1988 figures from the Board of Prison Terms.

In Kern County, authorities are equally aggressive in their pursuit of special charges. Accused burglar Jesus Silva learned that lesson the hard way after finding just the opposite in Los Angeles County. Silva, an illegal alien, was on probation for a first-degree burglary conviction in Imperial County when he was arrested in February, 1989, after leading Los Angeles police on a high-speed chase. Officers found three $50 savings bonds in his pockets that had been stolen in a residential break-in the day before, and he was charged yet again with first-degree burglary.

First-degree burglary carries a sentence of two, four or six years in prison. A repeat offender also is eligible for a five-year special allegation, known as a "nickel prior."

But after Silva agreed to plead guilty to the basic burglary charge, Deputy Dist. Atty. Clayburn H. Peters recommended the middle term of four years, court records show. Peters, however, allowed Silva to plead to a special allegation that added one year, instead of five years.

All told, Silva would be out in about 2 1/2 years. Or so he thought.

After he was sent to prison, Kern County authorities concluded that Silva also had burglarized a home in Bakersfield in 1988. New burglary charges were filed along with a new, five-year special allegation. As in the Los Angeles case, Silva was facing 11 years in prison.

However, this was Kern County--and Deputy Dist. Atty. Dennis G. Ryan of the Career Criminal Unit would offer no deals.

"Kern County residents are inviolate," said Ryan. "Anybody comes up here and burgles in Kern County, we take pretty seriously."

The prosecutor said he gave Silva two choices: take the 11 years now and go back to prison, where your sentence is reduced by one day for every day served, or wait in jail for a court date, earning one day's credit for every two days served.

In March, Silva pleaded guilty and was sentenced to 11 years. Kern County Superior Court Judge Arthur E. Wallace ordered that the sentence be served consecutively. That means that as soon as Silva finishes his Los Angeles sentence, he will have to serve time for his conviction in Kern County.

Peters, the Los Angeles County prosecutor, said he could not remember Silva's case in detail but had an explanation for why he enhanced Silva's sentence by one year instead of five for his previous burglary conviction.

"Sometimes, we don't get the records in time," Peters said. "If we don't have proof of the prior (offense) in the file at the time we're ready to go, it is assumed that the prior is second-degree, and you can only get a one-year enhancement on second-degree burglary."

Why didn't Peters ask for a postponement to check Imperial County's records, which would have confirmed that Silva had, in fact, been convicted of first-degree burglary?

"Look," Peters said, "I may be doing 20 cases that day. This way, it clears the case out of the system at an earlier stage and allows us to concentrate on other ones."

There are many others who believe that the speed with which a sentence is imposed often is more important than its length.

"The severity of the punishment is secondary to the timeliness and certainty of the sentence," said Los Angeles County Sheriff Sherman Block. "The greater deterrent is punishment that is swift and sure."

Swift prosecution also helps reduce the backlog of those awaiting sentencing, Block and others point out, and that in turn ensures that there will be room in jail for new inmates.

To combat jail crowding, Los Angeles County judges have adopted deadlines and implemented programs to streamline sentencing. Records indicate some success: in 1987, it took 65 days on average to adjudicate a criminal case in Superior Court; last year, the average dropped to 49 days.

Some of the court's recent innovations, however, have resulted in shorter sentences for many convicted criminals.

For example, defendants who are on probation when arrested for new crimes frequently are not charged with those crimes. "In lieu of" prosecution, the defendants simply are charged with having violated the terms of their probations.

It generally takes less time and effort to revoke probation than to pursue the new crime in court, according to attorneys and judges.

About 100 "in lieu of" probation violations are filed each month at the Criminal Courts Building downtown, county figures indicate.

Prosecutors say that they pursue probation violations only when the punishment would be the same or greater than that which would result if new charges were filed.

"It's become a very good tool," said David A. Horowitz, the supervising criminal judge of Los Angeles County Superior Court.

Horowitz said that 74% of 927 defendants whose probations were revoked last year in lieu of prosecution were sent to prison.

Of 44 "in lieu of" cases studied this year by The Times, half resulted in defendants going to prison, and only one received a maximum three-year sentence. The other half went to jail and got probation again.

Probation officials and others contend that the practice sometimes offers leniency to criminals.

"It's a freebie," said Deputy Probation Officer Mark Cutler, "no matter how you look at it."

The case of Timothy Jenkins, 23, serves as an example.

In April, 1989, the convicted drug dealer and robber was released from prison after serving about a year on a cocaine charge. He promptly escaped from a work furlough program.

Arrested again in July, 1989, on yet another drug sales charge, he remained in jail until December, when he agreed to plead guilty and was granted three years probation on the condition that he spend the first year in jail. He was given credit for 238 days of jail time already served, and was out in less than two months.

On April 5, 1990, Jenkins forced open the door of a residential hotel room in downtown Los Angeles and robbed Clarabelle Basicillo, 58, of $54. Basicillo, who can neither speak nor hear and is confined to a wheelchair, could do nothing to stop him.

Jenkins eventually was arrested for robbing Basicillo. But "in the interests of judicial economy," court records show, the district attorney's office declined to charge him with robbery, which is punishable by up to five years in prison. Jenkins instead was accused of having violated his probation.

He admitted that he had violated probation and in June was sentenced by Superior Court Judge Ito to three years in prison--the maximum for escape. Ito also credited Jenkins with 489 days already served.

Jenkins will spend about 10 months in prison.

"The system is too busy with horrendous crimes to spend much time bothering with the lesser ones," observed defense attorney Louis Sepe. "In the scheme of things, especially down at the Criminal Courts Building, these kinds of crimes are a pretty low priority."

That dictum may be particularly evident when the prosecution's case is weak, lawyers on both sides agree. Rather than risk losing a case at trial, The Times found, prosecutors commonly negotiate agreements that let defendants avoid additional time in custody.

Case in point: parolee Reginald Earl Cooper, 32, whom Sepe recently represented in court.

Cooper was arrested Feb. 11 in South-Central Los Angeles after breaking into a back-yard storage shed and stealing a small television.

The district attorney's office charged him with first-degree burglary, which carries a mandatory prison term. To that charge the district attorney added two special allegations of one year each because Cooper had been to prison twice before.

At the age of 16, Cooper spent nine months in the California Youth Authority for stabbing to death a man who allegedly had attacked his mother. Since then, records show, he has been convicted of burglary, possession of marijuana for sale and grand theft.

On May 8, as a jury was about to be seated in his latest burglary case, Cooper accepted a deal proposed by Deputy Dist. Atty. James Falco. In return for Cooper pleading guilty, Falco would reduce the burglary charge to second degree and recommend that he be sentenced to "time served"--the time he had already spent in jail awaiting trial.

Superior Court Judge Michael Hoff ratified the deal--and Cooper was a free man by the end of the day.

Hoff also agreed to write a letter to state officials in Cooper's behalf, asking that his parole not be revoked, court records show.

Falco said he plea bargained the case primarily because the victim, the only identifiable witness, could not be located as the trial was about to begin. Also, Falco said he suspected that Cooper may have known the victim, which could have weakened the prosecution's case.

"This is something that goes on all the time," Falco said. "This is part of the plea-bargaining process. If there is a possibility of conviction, we'll go after it, but if it's not that strong of a case. . . . This happened to be a (weak) case."

Falco said he did not consider Cooper's criminal history when he decided to negotiate a guilty plea.

"He may have a terrible record," the prosecutor said, "but we're not trying him on his record. The potential for someone else to be a victim exists, no question. Unfortunately, we can't control what these people do."

Despite Judge Hoff's letter to state prison officials, Cooper's parole was revoked and he was returned to prison in June at the California Institution for Men at Chino.

He was released two months later, according to a California Department of Corrections spokesman.

Since 1982, the number of ex-convicts annually returned to prison for parole violations in the Los Angeles metropolitan area has tripled, said Jerome DiMaggio, the area's state parole administrator.

"We're cleaning the streets of all the people the courts and the police used to handle," DiMaggio said.

But because the prisons are overflowing with new inmates--California's prison population jumped from about 25,000 in 1980 to more than 92,000 this year--most parolees sent back to prison on parole violations do not stay there long.

A 1989 Department of Corrections study found that the majority serve three months or less before being released again. Only about one in 20 parole violators spend a year or more in prison.

Said DiMaggio: "You have to just about commit murder to get a year on a parole violation."

Jail Times Actually Served on a One-Year Sentence

Actual time served on a one-year sentence in different cities varies widely. Policies about time off for good behavior, inmate work and other factors are used in calculating time served. In Los Angeles a one-year jail sentence typically is served in no more than 155 days. Detroit: 295 Philadelphia: 286 New York: 241 San Diego: 236 Chicago: 182 Houston: 182 Phoenix: 182 Los Angeles: 155 Dallas: 121 San Antonio: 121 The Times Poll: Sentences for Crimes

With felony court filings in Los Angeles climbing nearly 150% from 1980-1989, a majority of judges say that more cases have encouraged more plea bargains. But only one in three municipal court judges and one in five superior court jurists believe that the increasing volume has prompted lighter jail and prison sentences.

Despite state figures suggesting otherwise, less than one-in-10 judges surveyed by The Los Angeles Times Poll believes that sentences today are lighter than they were a decade ago.

In contrast, nearly 60% of police officers believe that jail and prison sentences handed out by judges today are not as stringent as 10 years ago. Among prosecutors surveyed, nearly four-in-10 said that criminals today are treated more leniently by the courts.

An overwhelming majority of police officers say that plea bargaining is too common. Probation officers and police officers, in fact, were more than five times as likely as judges to condemn the frequency with which case are settled with defendants pleading guilty to lesser charges or lighter sentences.

The overwhelming majority of judges, prosecutors and public defenders say that the frequency of plea negotiations is not excessive.

Most judges also believe that convicted criminals granted probation today pose no more of a threat to public safety than those released on probation 10 years ago. Others within criminal justice have a markedly different view, however. Overwhelmingly, probation officers say that people being released on probation today are more dangerous than ever before.

Are the sentences that defendants receive today longer, shorter or the same as they were 10 years ago?

Municipal Superior Public Probation Judges Judges Defenders Prosecutors Officers Longer 55% 51% 66% 29% 17% Shorter 8 9 7 38 55 About Same 29 33 22 25 24 Don't know 8 7 5 8 4

Police Longer 14% Shorter 59 About Same 22 Don't know 5

How have increasing caseloads affected the criminal justice system?

Municipal Superior Public Probation Judges Judges Defenders Prosecutors Officers Encouraged More Plea Bargaining 76% 63% 63% 67% 79% Prompted Lighter Sentences 30 20 15 43 57

Police Encouraged More Plea Bargaining 81% Prompted Lighter Sentences 57

Is there too much plea bargaining?

Municipal Superior Public Probation Judges Judges Defenders Prosecutors Officers Police Yes 12% 11% 13% 17% 71% 77% No 84 80 86 78 22 18 Not Sure 3 5 1 3 6 5 Refused 1 4 0 2 1 0

Are defendants released on probation today more dangerous than 10 years ago?

Municipal Superior Public Probation Judges Judges Defenders Prosecutors Officers More Dangerous 26% 24% 9% 48% 73% Less Dangerous 10 8 18 3 4 About the Same 54 52 63 38 20 Not Sure 9 12 9 10 3 Refused 1 4 1 1 0

Police More Dangerous 68% Less Dangerous 1 About the Same 26 Not Sure 5 Refused 1

Source: Los Angeles Times Poll

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