BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 2569       Hearing Date:    June 28, 2016    
          
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          |Author:    |Melendez                                             |
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          |Version:   |May 27, 2016                                         |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|AA                                                   |
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                   Subject:  Registered Sex Offenders; Megan's Law



          HISTORY

          Source:   Author

          Prior Legislation:AB 1844 (Fletcher) - Ch. 219, Stats. of 2010
                         AB 1323 (Vargas) - Ch. 722, Stats. of 2005
                         AB 488 (Parra) - Ch. 745, Stats. of 2004
                         

          Support:  California Alliance of Child and Family Services;  
                    California National Organization for Women; California  
                    Protective Parents Association; City of Hemet; City of  
                    Murrieta; City of Richmond; Crime Victims United of  
                    California; Incest Survivors' Speakers Bureau of  
                    California; STAND! For Families Free of Violence;  
                    United Advocates for Children of California

          Opposition:California Attorneys for Criminal Justice; California  
                    Civil Liberties Advocacy; California Public Defenders  
                    Association; California Reform Sex Offender Laws;  
                    Legal Services for Prisoners with Children; one  
                    individual

          Assembly Floor Vote:                 78 - 0









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          PURPOSE

          The purpose of this bill is to provide that, before certain  
          intra-familial sex offenders who have been granted probation can  
          be excluded from public disclosure on Megan's Law, 1) they would  
          be required to have been on probation for at least one year, and  
          2) a local assistance center for victims and witnesses, as  
          specified, would be required to speak to the victim to determine  
          if granting the exemption would be in the best interest of the  
          victim.

          Current law generally requires persons convicted of specified  
          sex offenses to register with law enforcement where they reside  
          for life, as specified.  (Penal Code § 290 et seq.)

          Current law generally requires that the Department of Justice  
          ("DOJ") make available information concerning persons who are  
          required to register as a sex offender to the public via an  
          internet website, as specified.  (Pen. Code § 290.46.)   

          Current law provides that persons required to register for  
          certain enumerated sex offenses may file an application with DOJ  
          for exclusion from the Internet Web site. "If the department  
          determines that the person meets the requirements of this  
          subdivision, the department shall grant the exclusion and no  
          information concerning the person shall be made available via  
          the Internet Web site described in this section. He or she bears  
          the burden of proving the facts that make him or her eligible  
          for exclusion from the Internet Web site. However, a person who  
          has filed for or been granted an exclusion from the Internet Web  
          site is not relieved of his or her duty to register as a sex  
          offender pursuant to Section 290 nor from any otherwise  
          applicable provision of law."  (Penal Code § 290.46(e).)  No  
          person may be excluded unless he or she is determined to have a  
          risk level of low or moderate low risk according to the State  
          Authorized Risk Assessment Tool for Sex Offenders (SARATSO).   
          (Penal Code § 290.46(e)(4).)  

          Current law authorizes this exemption for the following  
          offenses:

             A.   A felony violation of sexual battery (Penal Code §  
               243.4(a).)









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             B.   Misdemeanor child annoyance (Penal Code § 647.6.)

             C.   Felony crimes relating to obscene matter depicting a  
               minor, as specified (Penal Code §§    311.1, 311.2 (b), (c)  
               or (d), or 311.3, 311.4, 311.10, or 311.11), if the person  
               submits a certified copy of a probation report filed in  
               court that clearly states that all victims involved in the  
               commission of the offense were at least 16 years of age or  
               older at the time of the commission of the offense.  (Penal  
               Code § 290.46(e).)

          Current law additionally authorizes this exemption for certain  
          intra-familial crimes, as follows:

                 Where the offender was the victim's parent, stepparent,  
               sibling, or grandparent, the crime did not involve either  
               oral copulation or penetration of the vagina or rectum of  
               either the victim or the offender by the penis of the other  
               or by any foreign object, and the offender successfully  
               completed probation, as clearly demonstrated by a certified  
               copy of an official document, as specified; or  

                 The offender was the victim's parent, stepparent,  
               sibling, or grandparent, the crime did not involve either  
               oral copulation or penetration of the vagina or rectum of  
               either the victim or the offender by the penis of the other  
               or by any foreign object, and the offender is on probation  
               at the time of his or her application, as clearly  
               demonstrated by a certified copy of official documents, as  
               specified.  (Penal Code § 290.46(e)(2)(D).)

          This bill would require, in the cases of intra-familial abuse  
          described above, that an offender who is on probation at the  
          time of his or her application have been on probation for at  
          least one year prior to the granting of his or her application.

          Current law provides that if, subsequent to his or her  
          application, the offender commits a violation of probation  
          resulting in his or her incarceration in county jail or state  
          prison, his or her exclusion, or application for exclusion, from  
          the Internet Web site shall be terminated.  (Penal Code §  
          290.46(e)(2)(D)(iii).)










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          Current law provides that, for purposes of this subparagraph,  
          "successfully completed probation" means that during the period  
          of probation the offender neither received additional county  
          jail or state prison time for a violation of probation nor was  
          convicted of another offense resulting in a sentence to county  
          jail or state prison.  (Penal Code § 290.46(e) (2) (D)(iv).)

          This bill would require additionally that, prior to DOJ granting  
          an application under this subparagraph, a local assistance  
          center for victims and witnesses, established pursuant to  
          Article 2 (commencing with Section 13835) of Chapter 4 of Title  
          6 of Part 4 shall speak to the victim to determine if granting  
          the exemption would be in the best interest of the victim.

                     RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  









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          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.



          COMMENTS

          1.Stated Need for This Bill

          The author states:

               As statistics show, the most common sex crimes  
               committed against children are committed by a family  
               member, someone the child knows and trusts.  Since  









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               2011, over 1000 sex offenders have been excluded from  
               the Megan's Law website with nearly half of those  
               exclusions being from the family member exemption.   
               The intent of Megan's Law is to provide the public  
               with the information on the whereabouts of sex  
               offenders so communities may protect themselves and  
               their children.  If the intent of Megan's Law is to  
               protect the public against sex offenders, yet we are  
               allowing the exclusion of people who are committing  
               sex crimes against their own kin; then the intent of  
               Megan's Law is not being met under the current law.   
               We cannot continue to keep sexual predators and  
               pedophiles hidden from the public.  It heavily  
               contradicts the main purpose of Megan's Law: to keep  
               families safe.

               Statistics also show that children who are sexually  
               abused have a higher risk of committing crime  
               throughout their life. Young boys who were molested  
               are 19% more likely to commit burglary, 25% more  
               likely to commit armed robbery and grand theft, and  
               41% more likely to commit assault than other young  
               boys who were not sexually abused. Preventing sex  
               offenders to continue with their crimes will prevent  
               others from leading a life of crime and will overall  
               decrease the recidivism rate in our state.  

          2.Sex Offender Registration and the Megan's Law Website 

          California has had a sex offender registry since 1947.  As  
          explained by a 2014 report by the California Sex Offender  
          Management Board<1>, the original purpose of sex offender  
          registration was to assist law enforcement in tracking and  
          monitoring known sex offenders since they were viewed as  
          the group most likely to commit another sex offense.   

          In 2004, legislation enacted "Megan's Law," to provide an  
          Internet-based resource for the public to become aware of  
          known sex offenders in their neighborhoods and communities.  
          Exempting a narrow category of offenders from the publicly  
          -------------------------

          <1>  
          http://www.cce.csus.edu/portal/admin/handouts/Tiering%20Backgroun 
          d%20Paper%20FINAL %20FINAL%204-2-14.pdf








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          available registry was included in the original Megan's Law  
          legislation in 2004, and the following year these  
          provisions were revised and tightened.  As explained in a  
          2005 analysis by this Committee:

               When the Legislature required the Department of  
               Justice last year to establish a Megan's Law Web site  
               containing information about registered sex offenders  
               in California, the legislation created a limited  
               category of offenders who could apply to be exempted  
               from disclosure on the Internet (although would  
               continue to be subject to all other registration and  
               public disclosure laws).  The intent of these  
               provisions with respect to persons who receive  
               probation for intrafamilial molestation was explained  
               in the Committee analysis of AB 488 (Parra and  
               Spitzer), Ch. 745, Stats. 2004 as follows:

                 This bill would allow persons who are eligible  
                 for, granted and have successfully completed  
                 probation pursuant to Penal Code Section 1203.066  
                 to apply to be excluded from Internet listing.   
                 This is a very narrow category of non-violent,  
                 intra-familial offenders convicted of child  
                 molestation who, unlike all other sex offenders,  
                 are eligible for probation.  (Penal Code §§  
                 1203.065; 1203.166.)  In some instances, these are  
                 cases that can be prosecuted only because family  
                 member witnesses are willing to cooperate with  
                 prosecutors because of the availability of  
                 probation. . . . 

               . . .  Members may wish to consider whether an  
               approach more narrowly crafted than current law would  
               assure the public safety interests of Megan's Law  
               without unnecessarily exposing families where little  
               value in terms of enhanced public safety is likely to  
               be gained.  For example, an approach that specifically  
               excludes all penetration offenses, including oral  
               copulation, is limited only to cases involving a  
               parent, stepparent, sibling or grandparent, and  
               applies only to cases where probation has been granted  
               and not violated, may promote and balance these  
               interests.  These types of true incest cases (limited  









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               for these purposes to fondling and masturbation-type  
               offenses) are predicated on a closer familial  
               relationship where the offender is more likely to live  
               with the victim and recidivism rates are low.

               . . .   With respect to the bill now before the  
               Committee, members may wish to consider the extent, if  
               any, to which the identity of victims might be  
               disclosed if these particular offenders are included  
               on the Megan's Law Web site, and whether the risk of  
               this disclosure - which may include home address - is  
               outweighed by the potential public and child safety  
               risk posed by these offenders.<2>

          Current law strictly limits, and largely prohibits,  
          probation for child sex crimes. For offenses which are not  
          expressly excluded from probation eligibility by law,  
          probation in child molestation cases may be granted only if  
          the following terms and conditions are met:

               (A) If the defendant is a member of the victim's  
               household, the court finds that probation is in the  
               best interest of the child victim.

               (B) The court finds that rehabilitation of the  
               defendant is feasible and that the defendant is  
               amenable to undergoing treatment, and the defendant is  
               placed in a recognized treatment program designed to  
               deal with child molestation immediately after the  
               grant of probation or the suspension of execution or  
               imposition of sentence.

               (C) If the defendant is a member of the victim's  
               household, probation shall not be granted unless the  
               defendant is removed from the household of the victim  
               until the court determines that the best interests of  
               the victim would be served by his or her return. While  
               removed from the household, the court shall prohibit  
               contact by the defendant with the victim, with the  
               exception that the court may permit supervised  
               contact, upon the request of the director of the  

               ----------------------

          <2> Analysis of AB 1323 (Vargas), Senate Committee on Public  
          Safety (June 28, 2005).








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               court-ordered supervised treatment program, and with  
               the agreement of the victim and the victim's parent or  
               legal guardian, other than the defendant.

               (D) If the defendant is not a member of the victim's  
               household, the court shall prohibit the defendant from  
               being placed or residing within one-half mile of the  
               child victim's residence for the duration of the  
               probation term unless the court, on the record, states  
               its reasons for finding that this residency  
               restriction would not serve the best interests of the  
               victim.

               (E) The court finds that there is no threat of  
               physical harm to the victim if probation is granted.   
               (Penal Code § 1203.066.)

          The bill now before the Committee concerns the intra-family  
          crimes eligible for probation, which under current law are  
          required to have these limitations in order to not be  
          publicly listed on Megan's Law:

                 the offender was the victim's parent, stepparent,  
               sibling, or grandparent; 

                 the crime did not involve either oral copulation or  
               penetration of the vagina or rectum of either the  
               victim or the offender by the penis of the other or by  
               any foreign object; and

                 the offender was granted probation and successfully  
               completed it, or the offender is on probation at the  
               time of the application to not be listed on the public  
               Megan's Law site.

          This bill would apply two additional restrictions to this  
          category of exemptions from public disclosure on Megan's  
          Law:

                 This bill would require that an offender who is on  
               probation at the time of his or her application have  
               been on probation for at least one year prior to the  
               granting of his or her application; and










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                 This bill would require that before DOJ could grant  
               an application, a local assistance center for victims  
               and witnesses, which in California often are located  
               in the offices of district attorneys, "shall speak to  
               the victim to determine if granting the exemption  
               would be in the best interest of the victim."

          1.Potential Equal Protection Issue 

          Members may wish to consider whether this bill would pose a  
          constitutional question relating to equal protection  
          because it could result in two similarly situated  
          registrants confronted with different outcomes - one  
          subject to the public Megan's Law website, another not -  
          potentially based on the determination of a victim.

          It is not completely clear from the bill how its victim  
          notification proposal would work.  A victim/witness center  
          speaking with a victim clearly would be a prerequisite to  
          DOJ granting an exemption.  What is not clear from the  
          language is whether a victim's objection would affect or  
          determine the DOJ action.  To the extent it would, members  
          may wish to consider whether that would violate equal  
          protection.

          2.Policy Considerations for This Bill

          There are a number of policy considerations members of the  
          Committee and the author may wish to discuss concerning  
          this bill, including:

                 Would public safety be improved if a parent,  
               stepparent, sibling or grandparent who has been  
               granted probation for child molestation is disclosed  
               on the Megan's Law website during his or her first  
               year of probation?

                 How would requiring an intra-familial offender who  
               has been granted probation to be disclosed on the  
               public Megan's Law website for the first year of  
               probation affect the victim?  

                 Would public disclosure that a parent, stepparent,  
               sibling, or grandparent has been convicted of child  









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               molestation unnecessarily expose a child victim to  
               further anguish and emotional pain?  

                 Would the public safety benefit of public exposure  
               outweigh any potential negative impact on the child? 

                 How would requiring an intra-familial offender who  
               has been granted probation to be on the public Megan's  
               Law website for the first year of probation affect the  
               rehabilitation of the offender?  

                 Would the public safety benefit of this disclosure  
               outweigh any potential negative impact on the ability  
               of the offender to successfully rehabilitate?

                 Would this bill discourage the reporting of  
               intra-familial abuse by family members because it  
                       would assure the public disclosure of the crime and  
               the family for at least some period of time?

                 Would requiring a victim/witness center to speak to  
               a victim about a Megan's Law exemption be good for the  
               victim, who in these cases are children?  

                 Should a child victim be put in the position of  
               determining whether his or her parent, stepparent,  
               sibling or grandparent should be publicly disclosed on  
               Megan's Law?

                 Would this provision be somewhat redundant, since  
               for an offender to be granted probation in these cases  
               the court must make certain findings that probation  
               would be in the best interest of the victim?

                 Would this bill violate equal protection to the  
               extent it would give victims the decision making  
               authority to not allow an otherwise eligible offender  
               to be excluded from the public Megan's law website?

          1.Background

          As explained in the Assembly Public Safety Committee  
          analysis of this bill, there are about 98,000 registered  
          sex offenders on California's registry. About 76,000 live  









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          in California communities and the other 22,000 are  
          currently in custody. Of these offenders, 80% are posted on  
          the state's Megan's Law web site with their full address or  
          ZIP Code and other information, depending upon the offense  
          they committed.  About 20% are not posted or are excluded  
          from posting on the web site by law, again depending on the  
          conviction offense. Posting on the web site does not take  
          into account years in the community without reoffending,  
          the offender's risk level for committing a new sexual or  
          violent crime, or successful completion of treatment.   
          About one-third of registered offenders are considered  
          "moderate to high risk" while the remaining two-thirds are  
          "moderate to low risk" or "low risk." 

          Local police departments and sheriff's offices are charged  
          with managing the registration process. Registered sex  
          offenders must re-register annually on their birthdays as  
          well as every time they have a change of address.   
          Transient sex offenders re-register every 30 days and  
          sexually violent predators every 90 days. Registration  
          information collected by law enforcement is sent to the  
          California Department of Justice (DOJ) and stored in the  
          California Sex and Arson Registry.  If an offender's  
          information is posted online and he fails to register or  
          re-register on time, he will be shown as "in violation" on  
          the Megan's Law web site. When proof is provided by local  
          law enforcement to DOJ of a registrant's death, he or she  
          is removed from the registry.  Every ten years since the  
          Registry was first established has been marked by a  
          dramatic increase in the number of registrants.

          A 2014 background paper prepared by the California Sex  
          Offender Management Board summarized the research on what  
          is known about sex offenders and effective sex offender  
          management:

               As noted above, the original goal of registration was  
               to assist law enforcement in tracking and monitoring  
               sex offenders. Over time, registration was expanded to  
               include community notification and also began to  
               encompass a wider variety of crimes and behaviors. Due  
               to these changes, research has focused on exploring  
               the changes in sex offender registration laws and this  
               has resulted in a constantly growing body of research  









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               that has altered the perspective on sex offender  
               registration. This research has made it clear that: 

                           The sexual recidivism rate of identified  
                    sex offenders is lower than the recidivism rate  
                    of individuals who have committed any other type  
                    of crime except for murder. 

                           Not all sex offenders are at equal risk  
                    to reoffend. Low risk offenders reoffend at low  
                    rates, high risk offenders at much higher rates. 

                           It is possible to use well-researched  
                    actuarial risk assessment instruments to assign  
                    offenders to groups according to risk level.  
                    (i.e. Low, Medium, High.) 

                           Risk of a new sex offense drops each year  
                    the offender remains offense-free in the  
                    community. Eventually, for many offenders, the  
                    risk becomes so low as to be meaningless and the  
                    identification of these individuals through a  
                    registry becomes unhelpful due to the sheer  
                    numbers on the registry. Research has identified  
                    differing time.
                           Frames of decreased risk for the various  
                    categories of offenders (i.e. low, medium, high).  


                           Research on both general and sexual  
                    offenders has consistently indicated that  
                    focusing on higher risk offenders delivers the  
                    greatest return on efforts to reduce reoffending.  


                           Completing a properly designed and  
                    delivered specialized sex offender treatment  
                    program delivered within the context of effective  
                    supervision reduces recidivism risk even further.  
                    In California, all registered sex offenders on  
                    parole or probation are now required by state law  












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                    to enter and complete such a program. <3>
           
          6.   Author Amendments
          
          The author intends to offer the following amendments in  
          Committee:

                 The Department of Justice, which receives application,  
               shall contact the local assistance center for victims and  
               witnesses in the county of conviction for the registrable  
               sex offense. 
                 Once the Department of Justice submits the request for  
               the local assistance center for victims and witnesses to  
               contact the victim, written determination of the victim's  
               best interest is due to Department of Justice within 60  
               days after the Department of Justice contacts the center. 
                 If the victim is unable to be located, refuses to  
               partake in interview, or the local assistance center for  
               victims and witnesses does not interview victim and submit  
               determination within 60 days, the offender will be granted  
               exclusion if statutory criteria are met. 
                 Reconsideration of the exclusion application can be  
               granted only after 3 months from the denial of the last  
               exclusion application. 
                 If there are multiple offenses committed by the offender  
               against multiple victims, one local assistance center for  
               victims and witnesses shall consider the familial situation  
               and find that it would be in the best interest of all  
               victims in the case to deny the application for exclusion. 
                 If offenders commit an offense in another state and want  
               to apply for exclusion, the local assistance center for  
               victims and witnesses in the county in which the offender  
               is registered on the date the exclusion application is  
               filed must contact the victim and determine if it is in the  
               best interest of the victim to grant or deny the  
               application for exclusion. 
                 Notwithstanding subdivision (m) of 290.46 exclusion  
               applications already granted prior to the effective date of  
               AB 2569 shall not be subject to reconsideration.

          ---------------------------
          <3> A Better Path to Community Safety (2014), California Sex  
          Offender Management Board (citations omitted)  
          (http://www.casomb.org  
          /docs/Tiering%20Background%20Paper%20FINAL%20FINAL%204-2-14.pdf)








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