BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair A
1999-2000 Regular Session B
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AB 491 (Scott)
As Amended June 24, 1999
Hearing date: June 29, 1999
Penal Code
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CONCEALED HANDGUNS/LOADED FIREARMS -
PENALTIES FOR UNLAWFULLY POSSESSING IN PUBLIC/VEHICLES
HISTORY
Source:California Police Chiefs' Association
Prior Legislation: AB 304 (Scott) - Ch. 459, Stats. 1997
AB 632 (Katz) - Ch. 787, Stats. 1996
AB 2694 (Burton) 1994 Held in Senate
Appropriations
Support: California Police Chiefs' Association; City of
Los Angeles; City of West Hollywood; Handgun
Control; Legal Community Against Violence; Public
Health Institute; Trauma Foundation; Women
Against Gun Violence
Opposition:California Public Defenders Association;
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California Rifle and Pistol Association;
California Shooting Sports Association; Gun
Owners of California, Inc.; National Rifle
Association
Assembly Floor Vote: Ayes 43 - Noes 27
KEY ISSUES
SHOULD ANY PERSON WHO CARRIES A CONCEALED HANDGUN IN PUBLIC, WHERE THE GUN IS
LOADED OR WHERE AMMUNITION IS READILY AVAILABLE, BE GUILTY OF AN ALTERNATE
FELONY/MISDEMEANOR ("WOBBLER"), NOT A MISDEMEANOR AS UNDER CURRENT LAW, IF HE
OR SHE IS NOT THE "REGISTERED" OWNER OF THE HANDGUN, AND OTHER FELONY
PROVISIONS DO NOT APPLY?
SHOULD ANY PERSON WHO OPENLY CARRIES A LOADED HANDGUN IN PUBLIC BE GUILTY OF
AN ALTERNATE FELONY/MISDEMEANOR ("WOBBLER"), NOT A MISDEMEANOR AS UNDER
CURRENT LAW, IF HE OR SHE IS NOT THE "REGISTERED" OWNER OF THE HANDGUN, AND
OTHER FELONY PROVISIONS DO NOT APPLY?
PURPOSE
The purpose of this bill is to allow an alternate
misdemeanor/ felony conviction where a person conceals, and
carries in public, a loaded handgun, or a handgun for which
he or she has ready ammunition, and where he or she is not
the registered owner of the handgun.
The purpose of this bill is to allow an alternate
misdemeanor/felony conviction where a person openly carries
in public a loaded handgun and he or she is not the
registered owner of the handgun.
EXITING LAW AND THIS BILL - CARRYING GUNS IN PUBLIC
1. Existing Law as to Carrying Concealed Handguns
a. Carrying a Concealed Firearm, Defined :
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i. Every person who carries concealed within any
vehicle which is under his or her control or
direction any pistol, revolver, or other firearm
capable of being concealed upon the person; or,
ii Causes to be concealed within any vehicle in
which the person is an occupant any pistol,
revolver, or other firearm capable of being
concealed upon the person; or
iii. Carries concealed upon his or her person any
pistol, revolver, or other firearm capable of being
concealed upon the person, is guilty of carrying a
concealed handgun. (Pen. Code 12025, subd. (a).)
A number of exceptions and limitations are contained in law
pertaining to this crime, including methods to lawfully
carry firearms in a vehicle, in a home or business, etc..
(Pen. Code 12025, 12025.5, 12026, 12026.2, 12027, and
12050.)
b. Punishment for Carrying a Concealed Firearm
i A violation of the prohibition against carrying a
handgun, concealed on the person or within a
vehicle, concealable firearm concealed or in a
vehicle is generally a misdemeanor, punishable by up
to one year in a county jail.
ii A violation by a person who has been convicted of
a crime against a person or property, or of a
narcotics or dangerous drug violation, is an
alternate felony/misdemeanor, punishable by up to
one year in jail or by imprisonment in state prison.
iii Specified violations are punishable as a felony:
where the person has previously been convicted of
any felony, or of any crime made punishable by the
Dangerous Weapons' Control Law; where the firearm is
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stolen and the person knew or had reasonable cause
to believe that it was stolen; where the person is
an active participant in a criminal street gang; and
where the person is not in lawful possession of the
firearm, as defined, or the person is within a class
of persons prohibited from possessing or acquiring a
firearm. (Pen. Code 12025, subd. (b).)
2. Existing Law as to Openly Carrying a Loaded Firearm in
Public :
A person is guilty of carrying a loaded firearm when he or
she carries a loaded firearm on his or her person or in a
vehicle while in any public place or on any public street
in an incorporated city or in any public place or on any
public street in a prohibited area of unincorporated
territory. (Pen. Code 12031, subd. (a)(1).) (A number
of exceptions and limitations are contained in law
pertaining to this crime.)
Violations are punishable in Penal Code section 12025, as
set out above: generally as a misdemeanor (up to one year
in jail); a felony in specified circumstances; and as an
alternated felony/ misdemeanor where the person has been
convicted of a crime against a person or property or of
narcotics or dangerous drug violations. (Pen. Code
12031, subd. (a)(2).)
3. Existing Law - Definition of a Loaded Firearm
Penal Code section 12031 prohibits the carrying of loaded
firearms in public. Subdivision (g) of section 12301,
states:
A firearm shall be deemed to be loaded for the
purposes of this section when there is an
unexpended cartridge or shell, consisting of a
case which holds a charge of powder and a
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bullet or shot, in, or attached in any manner
to, the firearm, including, but not limited
to, in the firing chamber, magazine, or clip
thereof attached to the firearm; except that a
muzzle-loader firearm shall be deemed to be
loaded when it is capped or primed and has a
powder charge and ball or shot in the barrel
or cylinder. Penal Code section 12031
prohibits the carrying of any loaded firearm.
Penal Code section 12035, which contains penalties for the
"criminal storage" of a loaded firearm, provides "'Loaded
firearm' has the same meaning as set forth in subdivision
(g) of Section 12031."
Penal Code section 12023, "armed criminal action" makes it
a crime to carry a loaded firearm with the intent to commit
a felony. Penal Code section 12001, subdivision (j),
provides that for purposes of section 12023, a firearm
shall be deemed to be "loaded" whenever both the firearm
and the unexpended ammunition capable of being discharged
from the firearm are in the immediate possession of the
same person.
This bill effectively provides, for purposes of carrying of
a concealed firearm, that loaded means that "both the
firearm and the unexpended ammunition capable of being
discharged from the firearm are in the immediate possession
of the same person."
This bill , for purposes of the new alternate
felony/misdemeanor of openly carrying a handgun by a person
who is not the registered owner, retains the definition of
loaded currently set out in section 12031, the statute that
prohibits public carrying of loaded firearms. That is: "A
firearm [is] . . . loaded . . . when there is an unexpended
cartridge or shell, consisting of a case which holds a
charge of powder and a bullet or shot, in, or attached in
any manner to . . . the firearm."
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4. Existing Law - Handgun Registration
Since about 1930, any purchase of a handgun from a dealer
was reported to the Department of Justice (or its
predecessor agency) for purposes of background checks on
the purchaser through the Dealer Report of Sale (DROS)
form. This may be commonly described as registration.
Since 1991, but not before that time, transactions between
private parties have been subject to DROS registration
through a licensed dealer. Registration of such a transfer
may also be done at a law enforcement agency through a Law
Enforcement Firearms Transfer (LEFT) form. (LEFT is seldom
used in practice.) (Pen. Code 12071, 12072, 12078
12082, 12084.) Certain exceptions, such as infrequent
loans of firearms between persons known to each other,
apply. (Pen. Code 12078, subd. (d).)
5. Existing Law - Duty of Attorney General to Maintain
Records
Penal Code section 11106 requires the Attorney General to
keep and maintain all records provided to the Department of
Justice in compliance with handgun registration rules.
This information must be provided to law enforcement
officials, courts, designated government agencies and the
registered owner or borrower of the firearm.
6. This Bill - New Alternate Felony/Misdemeanor of Carrying
a Concealed Handgun with Ready Ammunition
This bill creates a new alternate felony/misdemeanor of
carrying a concealable firearm (handgun), punishable by 16
months, two or three years in state prison, or by up to
one year in the county jail and/or a fine up to $1,000,
where the following are proved:
a) A person conceals and carries, on his or her
person, or within any vehicle, a concealable firearm
(handgun);
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b) The gun is loaded, or ammunition for the handgun is
in the person's immediate possession or is readily
accessible; and
b) The person is not listed as the registered owner or
the borrower of the handgun on Department of Justice
(DOJ) records pursuant to Penal Code section 11106.
7. This Bill - New Alternate Felony/Misdemeanor of Openly
Carrying a Loaded Firearm
This bill increases the penalty for possession of a loaded
firearm to an alternate misdemeanor/felony where the
firearm is a pistol, revolver, or other firearm capable of
being concealed upon the person (handgun) and the possessor
is not the registered owner.
COMMENTS
1. Need for This Bill
According to the author:
Existing law (Pen. Code 12020) provides that
concealed carrying of pen knives, brass knuckles,
dirks, daggers, zip guns and certain other devices
can be prosecuted as a felony. However, the illegal
carrying of a concealed handgun can only be
prosecuted as a misdemeanor [absent additional
elements].
The Policy Council on Violence Prevention
convened by the former Attorney General Lungren
concluded that "carrying a concealed, loaded
firearm without a permit is a serious crime and
should be treated as such. Therefore, the
council recommended that California enact
legislation to increase the penalty to a
"misdemeanor or felony" at the discretion of the
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district attorney."
AB 491 would allow district attorneys and judges
to charge or convict individuals who illegally
conceal unregistered firearms with either a
misdemeanor or felony. The only individuals
subject to the wobbler will be those carrying a
gun and ammunition if they have not undergone a
background check to acquire the gun.
2. Increased Penalties Proposed in This Bill for Loaded
Handguns - Concealed and Openly Carried
a) Concealed Handguns
This bill proposes to increase the penalty from a
misdemeanor to an alternate felony/misdemeanor for a
person who carries a loaded, concealed handgun under
Penal Code section 12025 where he or she is not the
registered owner of the gun. (Other elements, most
notably a prior felony conviction, would make such
conduct a felony under current law.)
Under current law - Penal Code section 12025 - a person
may receive no more than a misdemeanor for carrying a
concealed, loaded handgun where he or she is in "lawful
possession"<1> of the firearm, not otherwise be
prohibited from possessing the firearm, not otherwise
violating a law or committing a crime, not a member of a
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<1> Penal Code sections 12025, subdivision (f), and 12031,
subd. (a)(2)(G), define lawful possession thus: "For
purposes of this section, 'lawful possession' means that
the who has possession or custody of the firearm either
owns the firearm or has the permission of the owner or a
person who otherwise has apparent authority to possess or
have custody of the firearm. A person who takes a firearm
without the permission of the owner or without the
permission of a person who has custody of the firearm does
not have lawful possession of the firearm."
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street gang, and not otherwise subject to a felony
penalty.
b) Loaded, Openly Carried Handguns
This bill proposes to increase the penalty from a
misdemeanor to an alternate felony/misdemeanor for a
person who openly carries a loaded handgun under Penal
Code section 12031 where he or she is not the registered
owner of the gun. (Other elements, most notably a prior
felony conviction, would make such conduct a felony under
current law.)
Under current law - Penal Code section 12031 - a person
may receive no more than a misdemeanor for carrying a
loaded handgun where he or she is in "lawful possession"
of the firearm, not otherwise be prohibited from
possessing the firearm, not otherwise violating a law or
committing a crime, not a member of a street gang, and
not otherwise subject to a felony penalty.
Thus, the critical issue raised by this bill is whether
or not handgun registration should be the determining
factor in the penalty for possession of a concealed
handgun (apart from prior felony convictions etc, that
render possession of any firearm a felony).
Determination of this issue likely turns on what is
accomplished by gun registration and the process
necessary to register a gun.
3." Registration "
a) Basic Terms and History
California firearm law is particularly dense, if not
impenetrable, to the non-aficionado or law enforcement
expert. Under California law and practice,
"registration" generally involves the Dealer Registration
of Sale (DROS) form that are completed with most firearm
sales and transfers. Through DROS forms, DOJ conducts
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background checks of potential firearm owners to exclude
convicted felons and others statutorily prohibited from
possessing a gun. Prior to 1991, only actual purchases -
and only for handguns - from dealers were subject to
background checks and thus possible registration. Since
1991, generally any transfer of firearms between private
parties must be though a dealer and handgun transfer
records are maintained by the DOJ and thus there is
continuing "registration." Certain exceptions to these
rules apply, such as the infrequent loan of a firearm for
less than 30 days between persons known to each other.
Generally, a person who purchases or receives a handgun
in a transfer must complete a course in basic firearm
safety.
b) Registration Apart from Transfer, Cost of Registration
This bill raises the issue of how a person can register a
firearm apart from a transfer, whether in a private
transaction or through a dealer. According to
discussions among interested parties, it appears that a
gun owner can register his or her gun at a dealer through
the DROS form process, or at a law enforcement agency
through the LEFT form process, apart from any transfer or
sale.
The DROS background check fee to DOJ is $14. Dealers
must process DROS forms. Dealers may charge a statutory
$10 fee for the service. The dealer must hold the gun
through the applicable background check waiting period.
c) DOJ has Computerized Registraion Records for
Post-1979 Registration; Earlier Registration is on
Microfiche
It appears from discussions among interested parties that
the DOJ computer database includes registrations only
back to 1979. Earlier registrations are on microfiche.
Where the owner of a firearm is arrested for being in
possession of a loaded handgun that was registered prior
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to 1979, the information will not be in the computer
system. Thus, the arresting officer will likely arrest
the person for felony possession of a handgun. The
arrested person will then likely be charged with a felony
until he or she can establish that he or she is the
registered owner of the handgun. This may take some time
and effort.
According to interviews with Department of Justice
personnel, encouraging registration allows easier
identification of stolen firearms and easier prosecution
of those who use or traffic in stolen guns. The Attorney
General notes that any person who carries a concealed
handgun has necessarily committed a crime - the existing
misdemeanor - even where he or she is the lawful
possessor or registered owner of the gun. Essentially,
the Attorney General argues that it is not unreasonable
to place the burden of registration on a person who
intentionally commits a crime. Where the handgun is
registered, the defendant will avoid a felony.
4. Possible Equal Protection and Due Process Arguments
It may be argued that the bill denies equal protection and
due process under the 14th Amendment to the United States
Constitution for persons who registered handguns purchases
prior to 1979 and for those involved in private and
intra-family transfers prior to 1991. This is the argument
of the NRA and the California Rifle and Pistol Association.
5. Predecessor Legislation, AB 632 (Katz) Ch. 787, Stats.
1976 1996 - Lawful Possession
AB 632 created a felony that is committed where a person in
not in "lawful possession" of a concealed handgun or an
openly carried loaded gun. Essentially, one is in lawful
possession of a gun where he or she owns the gun or
possesses it with the permission of the owner. AB 632 also
made it a felony to carry a concealed handgun or a loaded
gun where the possessor knew the gun was stolen, or where
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he or she possessor was in a gang. The author of AB 632
argued that because one may be guilty of an alternate
felon/misdemeanor for possession of brass knuckles and the
like, knowing possession of a stolen gun or other unlawful
possession should be a felony.
6. Similar Legislation, AB 2469 (Burton - 1994) (Held in
Senate Appropriations)
AB 2469, in relevant part, would have created a new
alternate felony/misdemeanor where a person was found in
possession of a firearm with ammunition in his or her
immediate presence or readily accessible and the person was
not the registered owner or borrower of the handgun. The
bill was held in the Senate Appropriations Committee in
1994.
AB 2469 also would have required a report to the
Legislature as to the race, ethnicity, sex and age of those
prosecuted for misdemeanors and felonies under the new
wobbler.
7. Possible Ambiguity in Section 12031 Created by
(Inconsistent) Definitions in This Bill of a Loaded
Firearm
a) The Dangerous Weapons' Control Law Contains at Least
Two Definitions of a "Loaded" Firearm
Penal Code section 12031, subdivision (g), provides that
a gun is loaded where an unexpended cartridge or shell is
in the firing chamber or in any way attached to the
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firearm. <2>
Penal Code section 12001, subdivision (j). provides that
for purposes of section 12023, a firearm shall be deemed
to be "loaded" whenever both the firearm and the
unexpended ammunition capable of being discharged from
the firearm are in the immediate possession of the same
person.
b) This Bill May Include Only One Definition of a Loaded
Firearm for Purposes of Section 12031
i) Section 12025 - Readily Available Ammunition
This bill essentially includes two definitions of a
loaded firearm in section 12025, 1) ammunition in the
immediate possession of, or readily available to, the
possessor of the gun, and 2) a gun weapon that is
actually loaded, or where the ammunition is attached
to the gun in some fashion (such as in an automatic
"clip").
Conversely, this bill's amendments to section 12031
that create a new wobbler for openly carrying a loaded
handgun arguably may only be chargeable where the
defendant carries a gun with ammunition in the chamber
or attached to the handgun in some way, not where the
ammunition is readily available - such as where a
person carries an unloaded gun in one hand an
automatic "clip" in the other hand, or in a pocket.
Defendants may argue that openly carrying a handgun
with ready ammunition under section 12031 can only be
---------------------------
<2> Penal Code section 12035, which contains penalties for
the "criminal storage" of a loaded firearm, provides:
"'Loaded firearm' has the same meaning as set forth in
subdivision (g) of Section 12031." Penal Code section
12023 makes it a crime to carry a loaded firearm with the
intent to commit a felony.
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a misdemeanor because ready ammunition is excluded
from the definition of a loaded gun in section 12031.
This argument would be made under the rule of
statutory construction, "expressio unius est exclusio
alterius" - the expression of one thing is the
exclusion of the other. That is, each of section
12025 and section 12031 only contains one definition
of a loaded gun. Each definition - ready ammunition
and actually loaded gun - is different. Thus, it
would be argued, only the definition specifically
noted in section 12031 could apply where the defendant
openly carries a handgun.
A related rule of statutory construction holds that
where a person can be charged under a general criminal
law and a law that more specifically describes the
defendant's conduct, the more specific law shall
apply. This is particularly likely where the laws
governing a subject are comprehensive and
inter-related. (People v. De La Cruz (193) 20
Cal.App.4th 955.) The language of this bill may be
interpreted to only impose a felony for possession of
a concealed handgun where the possessor of the gun has
ready ammunition, not where the gun is actually
loaded.
8. Arguments in Support of the New Wobbler
The California Department of Justice argues:
AB 491 addresses a longstanding anomaly in the
law whereby an individual found in possession of
a dirk, dagger or club can be found guilty of a
felony while an individual carrying a loaded and
concealed handgun may be subjected to a
misdemeanor. AB 491 provides individuals who may
choose to violate Penal Code section 12025 with
relief from the felony should they demonstrate
that they are the lawful owners of the firearm.
This can be easily accomplished by merely
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voluntarily registering the handgun prior to
choosing to violate section 12025. Individuals
unlawfully possessing handguns will not seek this
relief.
9. Arguments in Opposition - New Concealed Handgun/Ready
Ammunition Wobbler
The National Rifle Association argues:
Assemblyman Scott proposes that the penalty for
illegally carrying a concealed weapon be
increased to a misdemeanor/felony (wobbler) if
the firearm is not registered in the Department
of Justice (DOJ) database. In spite of
legislative direction in SB 1308 (Peace) in 1994,
online DOJ handgun registration information is
only available to law enforcement from 1979 on.
Without this online registration information,
unwarranted felony arrests would result.
A similar bill [AB 2469] was carried . . . in
1994. [The author] dropped the penalty increase
linkage with registration status when it became
clear that DOJ's online capabilities were
deficient.
It is unclear why DOJ has been unwilling or
unable to bring their records up to date.
However it is clear that there can be no "quick
fix." The policy contained in AB 491 could not
be implemented fairly until DOJ's handgun
registration databases are fully accessible to
patrol officers.
The California Rifle and Pistol Association argues:
The California Rifle and Pistol Association is
opposed to AB 491 which would make the first
offense of carrying a concealed handgun without a
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permit an alternate felony/misdemeanor, instead
of the current misdemeanor where the person
carrying the firearm is in lawful possession of
the gun, although not the registered owner.
This provision was considered by the Legislature
in recent years but not adopted. Instead, the
Legislature passed AB 632 (Katz) in 1996 which
added Penal Code section 12025, subdivision
(b)(4), that took effect on January 1, 1997. AB
632 addressed the primary problem of persons who
carry . . . stolen handguns. Most gang members
and other criminals carry stolen handguns. They
are the real threat to society, not the person
who carries his or her own handgun concealed
because they are afraid of death or great bodily
injury at the hands of another but could not
obtain a permit to carry a handgun concealed
because their local issuing agency has a policy
of not granting permits, regardless of need.
AB 632 has not been in effect long enough to
assess its effectiveness. In the meantime, it
would be inappropriate to increase penalties as
proposed in AB 491. This is especially true
since there is no documented problem of otherwise
lawful individuals carrying handguns without
permits . . . that would justify the enactment of
this bill.
SHOULD ONE'S PENALTY FOR CARRYING A LOADED, CONCEALED
HANDGUN BE LIMITED TO A MISDEMEANOR, NOT AN ALTERNATE
FELONY/MISDEMEANOR, WHERE HE OR SHE HAS REGISTERED THE GUN?
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DOES THE DEPARTMENT OF JUSTICE DATABASE ACCURATELY REFLECT
THOSE WHO HAVE REGISTERED HANDGUNS, I.E., EITHER PURCHASED
A HANDGUN SINCE PURCHASE INFORMATION HAS BEEN MAINTAINED -
AND PRIVATE TRANSACTIONS HAVE BEEN REQUIRED TO BE MADE
THROUGH A DEALER - OR OTHERWISE HAVE "REGISTERED" A HANDGUN
WITH THE DEPARTMENT?
HAS PRE-1979 DATA BEEN MAINTAINED IN THE CURRENT ACCESSIBLE
DEPARTMENT OF JUSTICE SYSTEM?
SHOULD PERSONS IN LAWFUL POSSESSION OF HANDGUNS BE TREATED
DIFFERENTLY BASED ON WHETHER OR NOT THE FIREARM WAS
"REGISTERED" PRIOR TO 1979?
SHOULD PERSONS IN LAWFUL POSSESSION OF A HANDGUN BY VIRTUE
OF PERMISSION OF THE OWNER BE EXCLUDED FROM THE LIMITED
MISDEMEANOR PENALTY ONLY, AS UNDER CURRENT LAW?
10. " Three-Strikes" Impact of This Bill
This bill would add a felony penalty option to the existing
misdemeanor penalty pertaining to possession of a concealed
firearm. However, any person subject to this new felony
could not have had any felony convictions in the
past--serious, violent, or not--since the new felonies
proposed by this bill would only apply to persons without
such a record. Thus, the new felony penalty options
proposed by this bill are unaffected by the "three-strikes"
law. (Any person who has a prior felony conviction is
currently subject to a straight felony penalty in sections
12025 and 12031.)
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