BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Elaine K. Alquist, Chair A
2005-2006 Regular Session B
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AB 114 (Cohn)
As Amended May 31, 2005
Hearing date: June 7, 2005
Evidence Code
AA:br
CHARACTER EVIDENCE :
PHYSICAL AND SEXUAL CHILD ABUSE PROSECUTIONS
HISTORY
Source: Author
Prior Legislation: AB 141 (Cohn) - Ch. 116, Stats. 2004
SB 1876 (Solis) - Ch. 261, Stats. 1996
Support: Peace Officers Research Association of California;
Child Abuse Prevention Council of Contra Costa County;
Lambda Letters Project; California Correctional
Supervisors Organization; American Federation of State,
County, and Municipal Employees (AFSCME), AFL-CIO;
Office of the San Bernardino County Sheriff; California
District Attorneys Association; California Sexual
Assault Investigators' Association; Junior Leagues of
California State Public Affairs Committee; California
Peace Officers' Association; Los Angeles District
Attorney's Office; Gay and Lesbian Adolescent Social
Services Inc.
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Opposition:
California Alliance Against Domestic Violence; Family Law
Section of the California State Bar; California Public Defenders
Association; American Civil Liberties
Union; California Attorneys for Criminal Justice; Free Battered
Women
Assembly Floor Vote: Ayes 61 - Noes 6
KEY ISSUE
SHOULD CHARACTER OR "PROPENSITY" EVIDENCE OF A DEFENDANT'S PRIOR
ALLEGED ACTS OF CHILD ABUSE OR DOMESTIC VIOLENCE BE ALLOWED IN
CRIMINAL PROSECUTIONS INVOLVING PHYSICAL OR SEXUAL CHILD ABUSE, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to 1) allow evidence of a
defendant's prior acts of child abuse or domestic violence, as
defined -- so-called "propensity" evidence -- in criminal cases
involving physical or sexual child abuse, as specified; and 2)
extend the January 1, 2006 sunset for an advisory counsel under
the Department of Health Services relating to battered women's
shelters to 2010, as specified.
Current law provides that a court may in its discretion exclude
evidence if its probative value is substantially outweighed by
the probability that its admission will necessitate undue
consumption of time or create substantial danger of undue
prejudice, confusing the issues, or misleading the jury.
(Evidence Code 352.)
Current law provides that, with certain exceptions, evidence of
a person's character or a trait of his or her character, whether
in the form of an opinion, evidence of reputation, or evidence
of specific instances of his or her conduct, is inadmissible
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when offered to prove his or her conduct on a specified
occasion. (Evidence Code 1101.)
Current law provides that, with certain exceptions, in a
criminal action in which the defendant is accused of an offense
involving domestic violence, evidence of the defendant's
commission of other domestic violence is not made inadmissible
by the Evidence Code provision set forth directly above if the
evidence is not inadmissible under the general balancing test
weighing probative value against the probability that admission
of the evidence will necessitate undue consumption of time or
will create substantial danger of undue prejudice, confusion, or
misleading the jury. (Evidence Code 1109.)
"Domestic violence" under this section has the meaning set forth
in Penal Code Section 13700. In addition, "(s)ubject to a
hearing conducted pursuant to Section 352, which shall include
consideration of any corroboration and remoteness in time,
'domestic violence' has the further meaning as set forth in
Section 6211 of the Family Code if the act occurred no more than
five years before the charged offense." (Evidence Code
1109(d).)
Current law defines "domestic violence" in the Penal Code as
abuse committed against an adult or a minor who is a spouse,
former spouse, cohabitant, former cohabitant, or person with
whom the suspect has had a child or is having or has had a
dating or engagement relationship. (Penal Code 13700.)
"Abuse" is defined as intentionally or recklessly causing or
attempting to cause bodily injury or placing another person in
reasonable apprehension of imminent serious bodily injury to
himself or herself, or another. (Penal Code 13700 (a).)
Current law defines "domestic violence" in the Family Code as
abuse perpetrated against a spouse or former spouse, a
cohabitant or former cohabitant, a person with whom the
respondent is having or has had a dating or engagement
relationship, a person with whom the respondent has had a child,
a child of a party or a child who is the subject of an action
under the Uniform Parentage Act, where the presumption applies
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that the male parent is the father of the child to be protected,
or any other person related by consanguinity or affinity within
the second degree. (Family Code 6211.) "Abuse" in this
section is defined as intentionally or recklessly causing or
attempting to cause bodily injury, sexual assault, to place a
person in reasonable apprehension of imminent serious bodily
injury to that person or to another, or to engage in behavior
that has been or could be enjoined pursuant to Family Code
Section 6320 (orders enjoining assault and harassment). (Family
Code 6203.)
This bill would provide that when a defendant is accused of an
offense involving child abuse , evidence of the defendant's prior
commission of child abuse or domestic violence may be admitted
to prove the present child abuse charge(s) against the
defendant, except as follows:
The court determines that the probative value of the
evidence is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the
jury;
Evidence of acts occurring more than 10 years before the
charged offense is inadmissible under this section, unless
the court determines that the admission of this evidence is
in the interest of justice; and
Evidence of the findings and determinations of
administrative agencies regulating the conduct of health
facilities licensed under Section 1250 of the Health and
Safety Code is inadmissible under this section.
This bill would define "child abuse" for purposes of this
section to mean the following:
Corporal punishment or injury of a child (Penal Code
273d); and
Continuous sexual abuse of a child (Penal Code 288.5).
This bill also would make technical nonsubstantive amendments to
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Evidence Code Section 1109.
Sunset Extension
Current law requires the Maternal and Child Health Branch of the
State Department of Health Services to administer a
comprehensive shelter-based services grant program to battered
women's shelters, as specified. (Health and Safety Code
124250.)
Current law further requires that, in implementing this grant
program, the State Department of Health Services must consult
with an advisory council that shall remain in existence until
January 1, 2006. (Id., subdivision (e).)
This bill would extend this sunset until January 1, 2010.
COMMENTS
1. Stated Need for This Bill
The author states:
Currently it is not legal to introduce a prior
history of domestic violence when a defendant is
on trial for child abuse. However, prior history
of child abuse is admissible in cases of domestic
violence.
This double standard limits a district attorney's
ability to prosecute child abusers to the fullest
extent of the law. Studies show us that 53% to
70% of male batterers (i.e. those who assault
their wives) also frequently abuse their children
(Straus & Gelles, 1990). This correlation is too
strong to ignore. There is a clear connection
between child abuse and domestic violence, and the
laws of the State of California should reflect
this connection.
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This bill seeks to rectify a legal double standard
to ensure that juries are fully informed regarding
an abusers' complete history of violence towards
family members. AB 114 will do this by allowing
juries to hear prior evidence of domestic violence
in a child abuse case. This will help to
recognize family violence as one issue, not
domestic violence and child abuse as separate
problems to be treated differently.
2. What This Bill Would Do; Expansion of Current Law Concerning
"Propensity" Evidence
Under existing law, evidence of a person's character, including
evidence of specific instances of his or her prior conduct,
generally is inadmissible when offered to prove his or her
conduct on a particular occasion. (Evidence Code 1101.) This
type of evidence is sometimes called "propensity" evidence
because it involves a party's propensity to commit certain kinds
of acts.
There are various exceptions to this rule, including an
exception for any criminal action in which the defendant is
accused of a domestic violence crime. In such a case, evidence
of the defendant's commission of other domestic violence is not
barred by Evidence Code Section 1101 unless its probative value
is substantially outweighed by the probability that its
admission will necessitate undue consumption of time or create
substantial danger of undue prejudice, confusing the issues, or
misleading the jury. (Evidence Code 1109.)
In addition, pursuant to AB 141 (Cohn) from last session,
current law allows evidence of prior domestic violence committed
against a child or relative , as specified, in domestic violence
prosecutions if the act occurred no more than five years before
the charged offense and the probative value of the evidence is
not substantially outweighed by the adverse impacts described
above. (Evidence Code 1109(d).)
This bill would amend Section 1109 to allow, for acts occurring
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less than 10 years before the charged offense unless admission
of the evidence is determined by the court to be in the interest
of justice, "evidence of the defendant's commission of child
abuse or domestic violence" in prosecutions for felony child
abuse<1> or continuous sexual abuse of a child<2> if its
probative value is not substantially outweighed by the undue
consumption of time or the substantial danger of undue
prejudice. The evidence this bill would allow would be of prior
acts - "the defendant's commission of child abuse or domestic
violence" - not prior convictions.
For purposes of comparison, the author's AB 141 from last
session amended Evidence Code Section 1109 to add the following
provision with respect to admitting propensity evidence in
domestic violence prosecutions:
Subject to a hearing conducted pursuant to Section
352, which shall include consideration of any
corroboration and remoteness in time, "domestic
violence" has the further meaning as set forth in
Section 6211 of the Family Code if the act occurred
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<1> Penal Code Section 273d: "Any person who willfully
inflicts upon a child any cruel or inhuman corporal punishment
or an injury resulting in a traumatic condition is guilty of a
felony and shall be punished by imprisonment in the state prison
for two, four, or six years, or in a county jail for not more
than one year, by a fine of up to six thousand dollars ($6,000),
or by both that imprisonment and fine."
<2> Penal Code Section 288.5: "(a) Any person who either
resides in the same home with the minor child or has recurring
access to the child, who over a period of time, not less than
three months in duration, engages in three or more acts of
substantial sexual conduct with a child under the age of 14
years at the time of the commission of the offense, as defined
in subdivision (b) of Section 1203.066, or three or more acts of
lewd or lascivious conduct under Section 288, with a child under
the age of 14 years at the time of the commission of the offense
is guilty of the offense of continuous sexual abuse of a child
and shall be punished by imprisonment in the state prison for a
term of 6, 12, or 16 years."
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no more than five years before the charged
offense.<3>
The practical effect of this amendment was to add domestic
violence committed by the defendant against his or her child or
relative , as defined by Family Code Section 6211<4>, to the type
of propensity evidence that could be admitted in domestic
violence cases.
The bill now before the Committee would allow character or
"propensity" evidence of child abuse or domestic violence, as
defined, in child abuse prosecutions for felony child abuse or
continuous sexual abuse of a child. Thus, unless excluded by
the court for prejudicial reasons this bill would allow evidence
of an alleged (but not proven) prior incident of domestic
violence in a prosecution for felony child abuse or continuous
sexual abuse of a child.
3. Background: Studies and Statistics: Links between Domestic
Violence sgainst Adults and Child Assault
Research indicates a significant connection between domestic
violence and child abuse. As explained by one researcher:
---------------------------
<3> Added by AB 141 (Cohn), Ch. 116, Stats. 2004.
<4> Family Code Section 6211 provides: "'Domestic violence" is
abuse perpetrated against any of the following persons (a) A
spouse or former spouse. (b) A cohabitant or former cohabitant,
as defined in Section 6209. (c) A person with whom the
respondent is having or has had a dating or engagement
relationship. (d) A person with whom the respondent has had a
child, where the presumption applies that the male parent is the
father of the child of the female parent under the Uniform
Parentage Act (Part 3 [commencing with Section 7600] of Division
12). (e) A child of a party or a child who is the subject of an
action under the Uniform Parentage Act, where the presumption
applies that the male parent is the father of the child to be
protected. (f) Any other person related by consanguinity or
affinity within the second degree ." (Emphasis added.)
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The studies reviewed here suggest that in 32% to
53% of all families where women are being beaten
their children are also the victims of abuse by
the same perpetrator. A small but growing body of
research also suggests that children who witness
domestic violence, but who are themselves not
physically abused, may suffer social and mental
health problems as a result. Although several new
initiatives are under way to integrate services
that provide safety to both battered women and
abused children, most state child protection,
family preservation and private child welfare
programs have done little to address this issue.
A review of existing literature suggests that our
present understanding of the link between woman
and child abuse would be enhanced by supporting
studies that:
1. directly aim to describe in
depth the cases in which woman abuse and
child abuse jointly occur;
2. more clearly define and shed
light on the incidence and experience of
children who witness domestic violence in
their homes;
3. more carefully examine the
short- and long-term social and mental
health effects on children of witnessing
violence;
4. clarify what links may exist
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between violence at home and youth
violence; and
5. enhance our understanding of
the effectiveness and efficiency of
programs that integrate the provision of
safety to mothers and their children.<5>
The author submits the following summary of research in this
area:
Statistics:
"Men who batter their wives are likely
to assault their children. The battering of
women who are mothers usually predates the
infliction of child abuse (Stark & Flitcraft,
1988). At least half of all battering husbands
also batter their children (Pagelow, 1989).
The more severe the abuse of the mother, the
worse the child abuse (Bowker, Arbitell, and
McFerron, 1988)"
"Abuse of children by a batterer is
more likely when the marriage is dissolving,
the couple has separated, and the
husband/father is highly committed to continued
dominance and control of the mother and
children (Bowker, Arbitell, and McFerron,
1988). Since women and child abuse by
husbands/fathers is instrumental, directing at
subjugating, controlling and isolating, when a
woman has separated from her batterer and is
seeking to establish autonomy and independence
from him, his struggle to control and dominate
her may increase and he may turn to abuse and
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<5> Edleson, Mothers and Children, Understanding the Links
Between Women Battering and Child Abuse (1995).
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subjugation of the children as a tactic of
dominance and control of their mother (Stark
and Flitcraft, 1988; Bowker, Arbitell, and
McFerron, 1988)." (Hart, Barbara S. "Children
of Domestic Violence: Risks and Remedies." 22
Jan. 2003).
"Domestic violence is widespread and
occurs among all socioeconomic groups. In a
national survey of over 6,000 American
families, it was estimated that between 53% and
70% of male batterers (i.e., they assaulted
their wives) also frequently abused their
children (Straus & Gelles, 1990)."
"Over 3 million children are at risk of
exposure to parental violence each year
(Carlson, 1984). Children from homes where
domestic violence occurs are physically or
sexually abused and/or seriously neglected at a
rate of 15 times the national average (McKay,
1994). Approximately, 45% to 70% of battered
women in shelters have reported the presence of
child abuse in their home (Meichenbaum, 1994).
About two-thirds of abused children are being
parented by battered women (McKay, 1994). Of
the abused children, they are three times more
likely to have been abused by their fathers."
(Volpe, Joseph S. "Effects of Domestic Violence
on Children and Adolescents: An Overview." 21
Jan. 2003).
DOES THE RESEARCH EVIDENCE CONCERNING LINKS BETWEEN CHILD ABUSE
AND DOMESTIC VIOLENCE SUPPORT CHANGING THE RULES OF EVIDENCE AS
PROPOSED BY THIS BILL?
4. Opposition
Opponents to this bill argue that linkages between child abuse
and domestic violence do not warrant changing the rules of
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evidence in criminal prosecutions. For example, the Family Law
Section of the California Bar submits:
A) The concept of the inadmissibility of
improper character evidence is a coveted principle
in the legal profession. While it may be
understandable that, for example, evidence of
prior abuse of an elder may be relevant, under
certain circumstances, in a case of abuse of an
elder (as is the case in existing law, Evidence
Code 1109(a)(2), the proposed addition to
Evidence Code 1109(a)(3) does not propose the
same consistency. Instead, it indicates that,
where a defendant is accused of an offense
involving child abuse, evidence of the defendant's
commission of domestic violence . . . may be
admissible. While there may be some connection,
they are not so connected to warrant a breach of
this coveted rule of evidence.
B) Additionally, the evidence which is
sought to be allowable into evidence is vague and
all-encompassing, to wit: "evidence of the
defendant's commission of domestic violence." The
language of the bill does not require prior
"conviction," but prior "commission." This could
include mere allegations of domestic violence -
allegations which are never proven. This is a
frequent occurrence and problem for families.
Under the proposed bill, mere allegations of
domestic violence could be used against a
defendant in a child abuse case to prove that
their alleged conduct (abusing a child) was in
conformity with their character. Essentially, the
evidence could be used to show that because the
defendant may have been alleged to commit domestic
violence in the past, they likely perpetrated the
child abuse in this case because it is their
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"character." (Emphasis in original.)<6>
Similarly, the California Alliance Against Domestic Violence
"believes that AB 114 would create bad law for the following
reasons:
(1) An insufficient nexus (with studies showing
about a 50% correlation) exists between those
individuals who commit domestic violence and
those who commit child abuse. The bill assumes
that children are abused in a household where the
defendant previously abused the child's mother;
however, there is no proven link between abuse of
an adult and abuse of a child.
(2) AB 114 is too broad in that it would allow the
admission of unproven allegations of past
domestic violence of an individual not at all
related to the current child abuse charge;
instead, existing law which allows prior acts of
domestic violence in a current charge of domestic
violence (Evidence Code Section 1109), and prior
acts of elder abuse in a current charge of elder
abuse (Evidence Code Section 1109) adequately
address the issue."<7>
The Alliance further expresses concerns that this measure could
backfire on battered partners by allowing their batterers to
employ fabricated allegations of child abuse and domestic
violence offensively in custody disputes.
DOES A LINK BETWEEN CHILD ABUSE AND DOMESTIC VIOLENCE BETWEEN
ADULTS WARRANT ALLOWING THE ADMISSION OF PROPENSITY EVIDENCE IN
CHILD ABUSE CASES AS PROPOSED BY THIS BILL?
SHOULD AN ALLEGED PAST INCIDENT OF DOMESTIC VIOLENCE BE KNOWN TO
A TRIER OF FACT TO PROVE THAT A DEFENDANT COMMITTED FELONY CHILD
ABUSE, OR CONTINUOUS CHILD SEX ABUSE IN AN UNRELATED CASE?
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<6> Letter dated April 14, 2004, on file with the Committee.
<7> Letter dated April 19, 2005, on file with the Committee.
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In addition to connections between child abuse and domestic
violence, research studies indicate that there may be many other
indicators involving domestic violence. For example,
preliminary studies suggest connections between domestic
violence and poverty, public assistance, and unemployment;<8>
animal cruelty;<9> and substance abuse.<10> Members of the
Committee may wish to consider whether making these connections
for effective public policy prevention and intervention
initiatives means that past evidence of these indicators should
be allowed to be introduced as character evidence in criminal
prosecutions for physical or sexual child abuse.
DO SOCIAL AND BEHAVIORAL CONNECTIONS BETWEEN CHILD ABUSE AND
DOMESTIC VIOLENCE WARRANT CHANGING THE LAWS OF EVIDENCE IN
CRIMINAL CASES, AS PROPOSED BY THIS BILL?
5. Character Evidence Generally
The "character evidence rule" - that is, the general rule
barring the use of character to show conduct - has "undergone
significant erosion in recent years. The rule also has been
subjected to withering criticism. But the character evidence
rule - which bars the 'circumstantial' use of character - is not
yet dead. Moreover, the character evidence rule still has many
defenders. (Indeed, in the legal community the rule's defenders
seem to outnumber its critics.)"<11>
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<8> See Welfare and Domestic Violence Against Women: Lessons
from Research (Violence Against Women Online Resources).
<9> See Human Society of the United States web site
(www.hsus.org).
<10> See Substance Abuse Treatment and Domestic Violence
Treatment Improvement Protocol (TIP) Series 25 (U.S. Dept. of
Health and Human Services Alcohol and Drug Information
[http://www.health.org/govpubs].)
<11> Tillers, Symposium: "What is Wrong with Character
Evidence?" 49 Hastings L.J. 781 (March 1998) (footnotes
omitted).
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As observed by one legal commentator:
The rules governing the use of character evidence
were not written for the lay person. They are not
the equivalent of criminal rules whose infraction
can subject its violator to fines, jail, or worse.
The rules are not concerned with shaping human
conduct in everyday affairs, but rather with the
kinds of information jurors should consider in
discharging their functions. The rules are
directed at lawyers who try cases, judges who
preside over those cases, and appellate judges who
review those cases. They are directed at
individuals trained in the law. Although needless
complexity and lack of clarity in statutes are
surely undesirable, the chief focus in assessing
the continued vitality of the character evidence
rules must be on whether the benefits of excluding
predisposition evidence are outweighed by the
costs of withholding the evidence from the
jurors.<12>
A 1998 law review article explains that , until relatively
recently character evidence has been inadmissible - going back
to English common law - as unduly prejudicial:
For hundreds of years, common law prohibited the
use of character evidence against a defendant in a
criminal trial. It was believed that although
character evidence may be relevant, it was so
prejudicial that its introduction would deny the
defendant a fair trial. . . .
. . .
Character evidence means evidence of a person's
moral character: the propensity to do something
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<12> Mendez, Symposium: "Character Evidence Reconsidered:
People Do Not Seem to be Predictable Characters," 49 Hastings
L.J. 871 (March 1998) (footnotes omitted).
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because of the kind of person one is. Before
section 1108 was enacted, the prohibition against
the prosecution's introduction of character
evidence in its case in chief was "the universal
rule." If prior crimes evidence was admitted,
"the prosecutor could not argue, nor could the
court instruct, that the jury could consider such
evidence to prove the defendant's character (as
opposed to some valid, non-character purpose), let
alone that proof of the defendant's character
could be used to prove the defendant's guilt in
the current offense."
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. . .
Character evidence is excluded because of its
inflammatory effect on juries. Witkin states:
"such evidence is some indication of the
likelihood of [the defendant's] guilt and is
therefore relevant, but it would be highly
prejudicial in its tendency to draw the attention
of the jury away from the evidence dealing with
the crime charged." One aspect of the
presumption of innocence is the fundamental axiom
that the accused must be tried only for what he
did, not for who he is.<13>
Proponents of this measure submit that this bill would "take
steps to help ensure the safety of children by showing patterns
of violence exist."<14> AFSCME, which also supports this bill,
argues:
AB 114 will protect children by allowing previous
acts of domestic violence, which reflect strongly
upon the character of a defendant to be introduced
as part of the case.
WOULD THIS BILL PERMIT THE INTRODUCTION OF EVIDENCE THAT WOULD
HAVE AN "INFLAMATORY EFFECT" ON JURORS?
OR, WOULD THE COURT'S ABILITY UNDER THIS BILL TO EXCLUDE THIS
EVIDENCE IF DEEMED TO BE PREJUDICIAL PROVIDE AN EFFECTIVE GUARD
AGAINST THE INTRODUCTION OF INFLAMATORY EVIDENCE?
---------------------------
<13> McGuinness, Sliding Backwards: The Impact of California
Evidence Code Section 1108 on Character Evidence, Rape Shield
Laws and the Presumption of Innocence (9 Hastings L.J. 97 (1998)
(footnotes omitted).
<14> Letter of support dated February 23, 2005, Child Abuse
Prevention Council of Contra Costa County.
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