BILL ANALYSIS                                                                                                                                                                                                    






                                                                    SB 1389


                                                                     Page A


          Date of Hearing:  June 28, 2016


          Counsel:               Gabriel Caswell








                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          SB  
          1389 (Glazer) - As Amended May 31, 2016





          SUMMARY:  Requires the electronic recording of the interrogation  
          of any person suspected of murder. Specifically, this bill:  

          1)Applies the requirements that an interrogation be  
            electronically recorded to any person suspected of committing  
            murder, not just a juvenile.

          2)Specifies that for the purposes of the custodial interrogation  
            of an adult, "electronic recording" means a video or audio  
            recording that accurately records a custodial interrogation.












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          EXISTING LAW:  


          1)Provides under the Fifth Amendment of the Federal Constitution  
            provides in pertinent part that "No person shall?be compelled  
            in any criminal case to be a witness against himself?." 



          2)States that the U.S. Supreme Court in Miranda v. Arizona  
            (1966) 384 U.S. 436, held that the Fifth Amendment privilege  
            may be invoked during a custodial interrogation. To protect  
            the privilege, when a suspect invokes the right to remain  
            silent or the right to an attorney, all questioning must  
            cease.  The only exceptions to this rule are to allow officers  
            to question when reasonably necessary to protect the public  
            safety or to obtain non-incriminating booking information.

          3)Creates the Commission on Peace Officer Standards and Training  
            (POST) and provides that the Commission shall adopt, and may  
            from time to time amend, rules establishing minimum standards  
            relating to physical, mental, and moral fitness that shall  
            govern the recruitment of peace officers. (Pen. Code,  13510)

          4)Provides that POST shall prepare guidelines establishing  
            standard procedures which may be followed by police agencies  
            and prosecutors in interviewing minor witnesses. (Pen. Code,   
            13517.5)

          5)Provides that a custodial interrogation of a minor who is  
            suspected of committing a murder offense shall be  
            electronically recorded in its entirety. (Pen. Code,  859.5,  
            subd. (a).)

          6)Provides that a statement that is electronically recorded as  
            required creates a rebuttable presumption that the  
            electronically recorded statement was, in fact, given and was  
            accurately recorded by the prosecution's witnesses, provided  
            the electronic recording was made of the custodial  











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            interrogation in its entirety and the statement is otherwise  
            admissible. (Pen. Code,  859.5, subd. (a).)



          7)Provides that the requirement for the electronic recordation  
            of a custodial interrogation pursuant to this section shall  
            not apply under any of the following circumstances: (Pen.  
            Code,  859.5, subd. (b).)



             a)   Electronic recording is not feasible because of exigent  
               circumstance. The exigent circumstances shall be recorded  
               in the police report;

             b)   The person to be interrogated states that he or she will  
               speak to a law enforcement officer only if the  
               interrogation is not electronically recorded.  If feasible,  
               that statement shall be electronically recorded.  The  
               requirement also does not apply if the person being  
               interrogated indicates during interrogations that he or she  
               will not participate in further interrogation unless  
               electronic recording ceases.  If the person refuses to  
               record any statement, the officer shall document that  
               refusal in writing;

             c)   The custodial interrogation took place in another  
               jurisdiction and was conducted by law enforcement officers  
               of that jurisdiction in compliance with the law of that  
               jurisdiction, unless the interrogation was conducted with  
               the intent to avoid the requirements of this section;

             d)   The interrogation occurs when no law enforcement officer  
               conducting the interrogation has knowledge of facts and  
               circumstances that would lead an officer to reasonably  
               believe that the individual being interrogated may have  
               committed a murder. If during a custodial interrogation,  
               the individual reveals the facts and circumstances giving  











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               the officer reason to believe a murder may have been  
               committed, continued interrogation concerning that offense  
               shall be electronically recorded;

             e)   A law enforcement officer conducting the interrogation  
               or the officer's superior reasonably believes that  
               electronic recording would disclose the identity of a  
               confidential informant or jeopardize the safety of an  
               officer, the individual being interrogated, or another  
               individual.  An explanation of the circumstances shall be  
               recorded in the police report;



             f)   The failure to create an electronic recording of the  
               entire custodial interrogation was the result of a  
               malfunction of the recording device, despite reasonable  
               maintenance of the equipment, and timely repair or  
               replacement was not feasible; and



             g)   The questions presented to a person by law enforcement  
               personnel and the person's responsive statements were part  
               of a routine processing or booking of that person.   
               Electronic recording is not required of spontaneous  
               statements made in response to questions asked during the  
               routine processing of the arrest of the person. 



          1)Provides that if the prosecution relies on an exception to  
            justify a failure to make an electronic recording of a  
            custodial interrogation, the prosecution shall show by clear  
            and convincing evidence that the exception applies.  (Pen.  
            Code,  859.5, subd. (c).)














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          2)Provides that the presumption of inadmissibility of statements  
            provided in this section may be overcome, and a person's  
            statements that were not electronically recorded may be  
            admitted into evidence in a criminal proceeding or a in a  
            juvenile court proceeding, as applicable if the court finds  
            that all of the following apply:  (Pen. Code,  859.5, subd.  
            (d).)

             a)   If the statements are admissible under applicable rules  
               of evidence;

             b)   The prosecution has proven by clear and convincing  
               evidence that the statements were made voluntarily;

             c)   Law enforcement personnel made a contemporaneous audio  
               or audio and visual recording of the reason for not making  
               an electronic recording of the statements;

             d)   This provision does not apply if it was not feasible for  
               law enforcement personnel to make that recording; and

             e)   The prosecution has proven by clear and convincing  
               evidence that one or more of the exceptions existed at the  
               time of the custodial interrogation. 



          1)Provides that unless the court finds that an exception  
            applies, all of the following remedies shall be granted as  
            relief for noncompliance:  (Pen. Code,  859.5, subd. (e).)

             a)   Failure to comply with any requirements of this section  
               shall be considered by the court in adjudicating motions to  
               suppress a statement of a defendant made during or after a  
               custodial interrogation;

             b)   Failure to comply with any of the requirements of this  
               section shall be admissible in support of claims that the  
               defendant's statement was involuntary or unreliable,  











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               provided the evidence is otherwise inadmissible; and

             c)   If the court admits into evidence a statement made  
               during the custodial interrogation that was not  
               electronically recorded in compliance with this section,  
               the court, upon request of the defendant, shall give to the  
               jury cautionary instructions.  



          1)Provides that the interrogating entity shall maintain the  
            original or an exact copy of an electronic recording made of  
            an electronic recording made of a custodial interrogation  
            until a conviction for any offense relating to the  
            interrogation is final and all direct and habeas corpus  
            appeals are exhausted or the prosecution for that offense is  
            barred by law, or in a juvenile court proceeding, otherwise  
            provided in Welfare and Institutions Code Section 626.8. The  
            interrogating entity may make one or more true, accurate, and  
            complete copies of the electronic recording in a different  
            format. (Pen. Code,  859.5, subd. (f).)

          FISCAL EFFECT:  Unknown.


          COMMENTS: 


          1)Author's Statement:  According to the author, "videotaping of  
            interrogations has emerged as a powerful innovation and  
            fact-finding tool for the criminal justice system. The virtue  
            of videotaping interrogations, and its strength as a public  
            policy, lies not only in its ability to develop the strongest  
            evidence possible to help convict the guilty but also to help  
            guard against false confessions.



            "This tool goes to the heart of the criminal justice system:  











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            to accurately ascertain the facts surrounding criminal  
            offenses so that perpetrators are correctly identified and  
            punished.

            "According to national studies, law enforcement agencies that  
            videotape interrogations report that this practice increases  
            the quality of evidence available at trial and allows officers  
            to focus on the suspect during questioning rather than on  
            note-taking.

            "The ability to view a permanent record of the interrogation  
            is integral to the subsequent assessment of the suspect; his  
            or her comprehension of the Miranda warnings; and the nature,  
            setting and circumstances of the interrogation. It is  
            particularly important to have a permanent record of  
            interrogations of people with mental disabilities, one of the  
            groups most prone to false admissions of guilt.

            "Unfortunately, where there has been an absence of videotaped  
            interrogations, there's also been a rise in convictions later  
            overturned.

            "Wrongful convictions have become a nationwide, high-profile  
            issue, reflected in the more than 1,730 exonerations since  
            1989, according to the National Registry of Exonerations, a  
            project of the University of Michigan Law School. Many of  
            these wrongful convictions are based on an ever-increasing  
            number of false confessions, particularly in homicide cases.

            "False confessions were identified as the second most frequent  
            cause of wrongful convictions - behind false eyewitness  
            testimony - in a national study conducted by Professor Samuel  
            Gross of the University of Michigan.

            "2015 saw a record number of exonerations in the United  
            States: 149. This record continued the rapid increase in  
            exonerations over the past several years. Wrongfully convicted  
            individuals exonerated in 2015 served an average of 14.5 years  
            in prison.











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            "2015 also set a record for exonerations resulting from false  
            confessions: 27. Of these 27 false confessions, 22 were in  
            cases involving homicide. 

            "Because of the increased possibility of false confessions in  
            homicide cases-cases with very high stakes for society,  
            victims' families, and wrongfully convicted individuals-we  
            must have policies in place that ensure accurate documentation  
            of interrogations in these cases so that the best possible  
            evidence is presented in the courtroom.

            "The requirement in Senate Bill 1389 to videotape or audio  
            record the custodial interrogations of any person suspected of  
            homicide will improve criminal investigation techniques,  
            document false confessions when they occur, reduce the  
            likelihood of wrongful conviction, and further the cause of  
            justice in California."


          2)False Confessions:  Every year many people are wrongly  
            convicted because of false confessions. Defendants also often  
            make motions to exclude statements made during an  
            interrogation arguing that they were coerced, there was abuse  
            or the statement was not made.  Studies have shown that  
            recording of interrogations puts an end to disputes regarding  
            statements and also has additional benefits.





            In March 2000, after declaring a moratorium on executions, the  
            then Governor of Illinois George Ryan appointed a Commission  
            to see what reforms to the death penalty would be necessary to  
            make it fair and just in Illinois.  After 24 months of study  
            the Commission set forth 85 recommendations. Among the  
            recommendations of Illinois Governor's Commission on Capital  
            Punishment (Illinois Commission) was the recommendation that:











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               Custodial interrogations of a suspect in a homicide case  
               occurring at a police facility should be videotaped.   
               Videotaping should not include merely the statement made by  
               the suspect after interrogation, but the entire process.<1>


            Illinois followed the recommendation, becoming "the first  
            state (recently joined by Maine and the District of Columbia)  
            to require by statute electronic recording of custodial  
            interrogations in custodial interrogations in homicide  
            investigations."<2>


            On July 25, 2006 the California Commission on the Fair  
            Administration of Justice (CCFAJ) issued a "Report and  
            Recommendations Regarding False Confessions."  The Commission  
            had a public hearing on June 21, 2006 and studied the reports  
            of the commissions and task forces assembled in other states  
            addressing the issue of false confessions, as well as research  
            documenting 125 cases of false confessions by suspects who  
            were indisputably proven to be innocent.   CCFAJ found that:


              Although it may seem surprising that factually innocent  
              persons would falsely confess to the commission of  
              serious crimes, the research provides ample evidence  
              -----------------------


          <1>


           Recommendation 4, Report of the Illinois Governor's Commission  
          on Capital Punishment (April 2002).
          <2> Sullivan, Thomas P.; "Police Experiences with Recording  
          Custodial Interrogations" A special report by: North western  
          University School of Law Center on Wrongful Convictions, Summer  
          2004, p. 2.  
          (www.law.northwestern.edu/wrongfulconvictions/caused/custodialint 
          errogations.htm)








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              that this phenomenon occurs with greater frequency than  
              widely assumed. The research of Professors Steven Drizin  
              and Richard A. Leo identifies 125 cases which occurred  
              between 1972 and 2002, with 31% of them occurring in the  
              five years previous to 2003. Eight of these examples, or  
              6 % of the sample, occurred in California cases.  
              (California Commission on the Fair Administration of  
              Justice, "Report and Recommendations Regarding False  
              Confessions" p.2 www.ccfaj.org)


            Like the Illinois Commission CCFAJ found that recording  
            interrogations not only helps reduce false confessions but  
            that:


              There are a number of reasons why the taping of  
              interrogations actually benefits the police departments  
              that require it.  First, taping creates an objective,  
              comprehensive record of the interrogation.  Second,  
              taping leads to the improved quality of interrogation,  
              with a higher level of scrutiny that will deter police  
              misconduct and improve the quality of interrogation  
              practices.  Third, taping provides the police protection  
              against false claims of police misconduct.  Finally,  
              with taping, detectives, police managers, prosecutors,  
              defense attorneys and judges are able to more easily  
              detect false confessions and more easily prevent their  
              admission into evidence. (Id. p. 4)


          3)Electronic Recording of Interrogations:  As of January 2014,  
            the law requires the electronic recording of the interrogation  
            of a juvenile suspected of murder.  In addition, there are a  
            number of jurisdictions in California that voluntarily, at  
            least some of the time, electronically record other  
            interrogations.  This bill would extend the provision  
            requiring the electronic recording of the interrogation of  
            juvenile murder suspects to apply to any person suspected of  











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            murder.


          4)Benefits to Law Enforcement:  There are a number of benefits  
            in recording interrogations:  it allows the interviewer to  
            question the suspect without any distractions (notebooks,  
            statement forms, or typewriters), observe the suspect's  
            demeanor and body language, and use the recordings as training  
            for other personnel.  Recording interrogations also reduces  
            allegations of coerced or false confessions.  A National  
            Institute for Justice study found that law enforcement  
            agencies experienced 43.5% fewer allegations of improper  
            police tactics as a result of recording interrogation  
            sessions.  This practice also enhances the reliability of any  
            statements as judges and juries are able to view the tape  
            themselves.  


          5)Fifth Amendment Protections:  The Fifth Amendment of the U.S.  
            Constitution provides in pertinent part that "No person  
            shall?be compelled in any criminal case to be a witness  
            against himself?."



          The U.S. Supreme Court in Miranda v. Arizona (1966) 384 U.S.  
            436, held that the Fifth Amendment privilege may be invoked  
            during a custodial interrogation.  To protect the privilege,  
            when a suspect invokes the right to remain silent or the right  
            to an attorney, all questioning must cease.  The only  
            exceptions to this rule are to allow officers to question when  
            reasonably necessary to protect the public safety or to obtain  
            non-incriminating booking information.  

          To establish a valid waiver of Miranda rights, the prosecution  
            must show by a preponderance of the evidence that the waiver  
            was knowing, intelligent, and voluntary.  [People v. Williams  
            (2010) 49 Cal.4th 405, 425.]  Voluntariness of a juvenile's  
            confession is to be treated differently than an adult's.  The  











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            court must consider and weigh the age, intelligence, education  
            and ability to comprehend when determining whether the  
            confession was a product of free will and an intelligent  
            waiver of the minor's Fifth Amendment rights.  [In re Aven S.  
            (1991) 1 Cal.App.4th 69, 75.]
          6)Arguments in Support:  


             a)   According to the American Civil Liberties Union, "The  
               ACLU of California of proud to cosponsor SB 1389, an  
               important bill that will require the electronic recording  
               of custodial interrogations of any person suspected of  
               committing murder.  


               "False confessions, extracted during law enforcement  
               questioning of suspects, have been identified as a leading  
               cause of wrongful conviction.<3>  A recent report found  
               that more than 80 percent of the exonerations involving  
               false confessions were in homicide cases.<4>  


               "Three injustices result from such false confessions.   
               First, a false confession can cause an innocent person to  
               be incarcerated.  Second, when an innocent person is  
               incarcerated, criminal investigations end and the real  
               perpetrator remains free to commit similar, or potentially  
               worse, crimes.  Third, victims' families are subjected to  
               double the trauma, with the loss or injury of a loved one,  
               and the guilt over the conviction of an innocent person.   
               The reforms contained in SB 1389, specifically mandating  
               -------------------------


          <3> Richard A. Leo, False Confessions: Causes, Consequences, and  
          Implications, 37 Journal of the American Academy of Psychiatry  
          and the Law (2009), available at  
          http://www.jaapl.org/content/37/3/332.full.pdf. 
          <4> National Registry of Exonerations, Exonerations in 2015  
          (2016), available at  
          http://www.law.umich.edu/special/exoneration/Documents/Exoneratio 
          ns_in_2015.pdf.  








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               electronic recording of custodial interrogations of all  
               people suspected of committing murder, will improve  
               criminal investigation techniques, reduce the likelihood of  
               wrongful conviction, and further the cause of justice in  
               California.


               "California law enforcement is already familiar with the  
               mandate to record custodial interrogations of murder  
               suspects, as they are already required to conduct such  
               recordings in juvenile cases.<5>  As law enforcement  
               agencies across the state and country will attest,  
               electronic recording of custodial interrogations results in  
               many benefits to law enforcement agencies.  First,  
               recording creates an objective, comprehensive record of the  
               interrogation, which helps to avoid disputes as to what was  
               said and done by the participants in the interview and how  
               the participants conducted themselves.  Second, recording  
               enhances public confidence in law enforcement, while  
               reducing the number of civilian complaints against  
               officers.  And lastly, recording captures subtle details  
                                                                                       that may be lost if unrecorded, which help law enforcement  
               better investigate the crime. 


               "Because of these benefits, over 500 police departments  
               throughout the country require the taping of interrogations  
               and confessions.<6>  The American Federation of Police and  
               Concerned Citizens, International Association of Chiefs of  
               Police, Major Cities Chiefs Association, and National  
               District Attorney's Association are all in support of  
               electronic recording of custodial interrogations.<7>  Even  
               before the passage of SB 569, a substantial number of  
               departments in California were already recording a majority  
               -------------------------


          <5>  See  SB 569 (Ted Lieu), Chapter 799, Statutes of 2013.
          <6> California Commission on the Fair Administration of Justice,  
          Report and Recommendations Regarding False Confessions (2006). 
          <7> Thomas P. Sullivan, A Compendium of the Law Relating to  
          Electronic Recording of Custodial Interrogations (2016).








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               of custodial interrogations, including county sheriffs of  
               Alameda, Butte, Contra Costa, El Dorado, Orange, Placer,  
               Sacramento, San Bernardino, San Joaquin, Santa Clara  
               (including all police agencies operating within the  
               county), Ventura, and Yolo counties, as well as numerous  
               municipal police departments.<8>    


               "SB 1389 is important step in ensuring that confessions  
               made by defendants charged with the most serious crimes are  
               accurate and that the right person is held to answer for  
               the crime in question."  














             b)   According to the California Attorneys for Criminal  
               Justice, "This bill would expand Penal Code 859.5 to all  
               persons suspected of committing a crime of homicide.


               "Under Penal Code 859.5, a custodial interrogation of a  
               minor that is suspected of committing murder is required to  
               be electronically recorded in its entirety. This law was  
               passed to provide protection for this vulnerable group that  
               needs protection based on their age, cognitive development,  
               and due to the adversarial nature of custodial  


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


          <8> California Commission on the Fair Administration of Justice,  
          supra note 4.  








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               interrogations.


               "The National Registry of Exonerations, a project of the  
               University of Michigan Law School, tracks the number of  
               wrongful convictions in the United States. Since 1989,  
               there have been at least 1,700 exonerations nationwide.  
               According to a national study conducted by Professor Samuel  
               Gross of the University of Michigan, Professor Gross  
               identified that false confessions extracted during police  
               questioning of suspects as the second most frequent cause  
               of wrongful convictions.


               "SB 1389 would require the electronic recordation of  
               custodial interrogations of all persons, whether a minor or  
               an adult, suspected of a homicide. Videotaping of  
               interrogations have become commonplace and an accepted best  
               practice among many law enforcement agencies around the  
               nation and in California. This recording not only guards  
               against false confessions, but also develops the strongest  
               evidence possible to help convict the guilty.


               "The National Innocence Project has provided research  
               relating to contributing factors causing false confessions  
               including: real or perceived intimidation of the suspect by  
               law enforcement; use of force by law enforcement,  
               compromised reasoning ability of the suspect, due to  
               exhaustion, stress, mental limitations, or limited  
               education; devious interrogation techniques, such as untrue  
               statements about the presence of incriminating evidence,  
               and fear that failure to confess will lead to a harsher  
               punishment.<9>



               -------------------------
          <9>  
          http://www.innocenceproject.org/free-innocent/improve-the-law/fac 
          t-sheets/false-confessions-recording-of-custodial-interrogations










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               "Besides being prudent public policy, recording these  
               custodial interrogations benefit both the suspect and law  
               enforcement. This policy ensures that the suspect's rights  
               are protected during the interrogation. Also, this  
               recording creates a deterrent for law enforcement to use  
               coercive techniques as they are aware of the oversight and  
               accountability. Furthermore, the record provides protection  
               for law enforcement if the suspect suggest improper actions  
               during the interrogation. This recording may also increase  
               public confidence in law enforcement by reducing the number  
               of citizen complaints against law enforcement.


               "By implementing this best practice, both the alleged  
               suspect and law enforcement benefit from this oversight and  
               protections. For these reasons CACJ is proud to co-sponsor  
               SB 1389."


          7)Prior Legislation:


             a)   SB 569 (Lieu) Chapter 799 of the Statutes of 2013,  
               required the custodial interrogation of juveniles suspected  
               of committing murder to be electronically recorded in its  
               entirety.  


             b)   SB 1300 (Alquist), of the 2011-12 Legislative Session,  
               would have required the electronic recordation of custodial  
               interrogations of both adults and minors suspected of  
               serious or violent felonies.  SB 1300 was held on the  
               Senate Appropriations Committee's Suspense File.


             c)   SB 1590 (Alquist), of the 2007- 08 Legislative Session,  
               would have required the electronic recordation of any  
               custodial interrogation of an individual suspected of  
               homicide or a violent felony.  SB 1590 was held on the  











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               Senate Appropriations Committee's Suspense File.


             d)   SB 511 (Alquist), of the 2007-08 Legislative Session,  
               would have required custodial interrogations of violent  
               felony suspects to be electronically recorded.  SB 511 was  
               vetoed.

             e)   SB 171 (Alquist), of the 2005- 06 Legislative Session,  
               would have required the electronic recording of all  
               custodial interrogations relating to homicides and all  
               violent felony offenses.  SB 171 was vetoed.

             f)   AB 161 (Dymally), Chapter 754, Statutes of 2003, would  
               have encouraged law enforcement officials to videotape and  
               record the interrogation of a person accused of, arrested  
               for, or charged with a felony.  AB 161 was later amended to  
               a different subject matter.


          


          REGISTERED SUPPORT / OPPOSITION:




          Support


          American Civil Liberties Union (Co-sponsor)


          California Attorneys for Criminal Justice (Co-sponsor)


          California Public Defenders Association (Co-sponsor)  












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          Northern California Innocence Project (Co-sponsor)


          A New PATH


          Anti-Recidivism Coalition 


          California Innocence Project 


          Drug Policy Alliance 


          Ella Baker Center for Human Rights 


          Friends Committee on Legislation of California 


          Innocence Project 


          Legal Services for Prisoners with Children


          Major Cities Chiefs Association  





          1 private individual 















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          Opposition


          None 


          
          Analysis Prepared by:Gabriel Caswell / PUB. S. / (916)  
          319-3744