Opinion
F061610 Super. Ct. No. BF130489A
02-09-2012
THE PEOPLE, Plaintiff and Respondent, v. ZACHARY STEVEN EPPS, Defendant and Appellant.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Robert K. Gezi, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Robert K. Gezi, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Zachary Steven Epps guilty of conspiracy to commit a kidnapping, kidnapping to commit a robbery, kidnapping during a carjacking, assault with a deadly weapon, dissuading a witness by force or threat of force, possession of a deadly weapon with intent to dissuade a witness, and active participation in a criminal street gang. The jury also found personal-weapon-use and criminal-street-gang allegations true. The court found prison-term-prior allegations true at a bifurcated trial and sentenced him to an aggregate term of 45 years to life. On appeal, he challenges the gang expert testimony, the personal-weapon-use enhancements, some of the prior-prison-term enhancements, and the accuracy of the abstract of judgment. We modify the judgment as to some of the personal-weapon-use enhancements and some of the prior-prison-term enhancements, order correction of the errors in the abstract of judgment, and in all other respects affirm the judgment.
PROCEDURAL BACKGROUND
On April 29, 2010, an information charged Epps with conspiracy to commit a kidnapping (count 1; Pen. Code, §§ 182, subd. (a)(1), 209, subd. (b)(1)), kidnapping to commit a robbery (count 2; § 209, subd. (b)(1)), kidnapping during a carjacking (count 3; § 209.5, subd. (a)), assault with a deadly weapon, to wit, a knife (count 4; § 245, subd. (a)(1)), criminal threat (count 5; § 422), dissuading a witness by force or threat of force (count 6; § 136.1, subd. (c)(1)), possession of a deadly weapon with intent to dissuade a witness (count 7; § 136.5), and active participation in a criminal street gang (count 8; § 186.22, subd. (a)), all on December 30, 2009. All counts alleged that Epps served two prior prison terms. (§ 667.5, subd. (b).) All counts other than the count 4 assault with a deadly weapon and the count 7 possession of a deadly weapon with intent to dissuade a witness alleged that he personally used a weapon, to wit, a knife. (Former § 12022, subd. (b)(2), as amended by Stats. 2004, ch. 494.) All counts other than the count 8 criminal street gang charge included a criminal-street-gang allegation. (§ 186.22, subd. (b).)On July 19, 2010, a jury found Epps guilty on all counts other than the count 5 criminal threat (on which the jury deadlocked and the court declared a mistrial) and found true the other personal-weapon-use and criminal-street-gang allegations. On July 26, 2010, at a bifurcated trial on a jury waiver, the court found true all the prior-prison-term allegations. On December 17, 2010, the court sentenced him to an aggregate term of 45 years to life.
Later statutory references are to the Penal Code except where otherwise noted.
The information also charged Jenna Lee Campbell and Jose Franco Cardenas, but before Epps went to trial the court accepted Campbell's plea of guilty to accessory (§ 32) and granted the prosecutor's motion to sever Epps's trial from Cardenas's.
Later discussion omits all reference to the criminal-threat count. After the verdicts, the court accepted Cardenas's plea of nolo contendere to simple kidnapping. (§ 207, subd. (a)).
FACTUAL BACKGROUND
The evidence established that Casey Chambers, at Epps's request, gave Epps, Campbell, and Cardenas a ride to buy drugs at a house in Lamont, where Epps and Cardenas talked with some people for about half an hour. Chambers, who expected to be paid for driving, drove the three to an intersection where he intended to drop them off, but Epps and Cardenas put knives to his throat and his side. Alluding to his stealing some of Chambers's personal property and driving Chambers's car about a week before, Epps said, "I heard you're ratting on me," and ordered Chambers out of the driver's seat and into the passenger seat. As Epps drove to a credit union, Cardenas threw Chambers's cell phone away. At the credit union, Epps and Cardenas demanded Chambers's wallet and PIN. Cardenas used Chambers's ATM card to withdraw cash. Epps drove to a gas station, where Cardenas used the cash to pay for the gas. Epps and Cardenas threatened to kill him and his family if he were to call the police. After Epps drove to a mall, he, Cardenas, and Campbell got out, took Chambers's shoes and some other items from the trunk, and left in another vehicle. Officers arrested Cardenas inside the other vehicle and arrested Epps and Campbell inside a nearby motel room, where they seized Chambers's wallet, shoes, ATM receipt, and some other items.
A gang expert testified the Peckerwoods were a criminal street gang in Bakersfield with a white supremacist ideology, the Colonia Bakers were a Bakersfield subset of the Sureño criminal street gang, Epps was an active member of the former, and Cardenas was an active member of the latter. The parties stipulated Epps and Cardenas were inmates in the same prison at the same time. The gang expert testified about a "loose alliance" of white prison gangs and Sureño prison gangs that sometimes extends to the streets and, in reply to a hypothetical question, opined that the charged offenses were committed for the benefit of both gangs.
DISCUSSION
1. Hypothetical Questions
Epps argues that the court's allowing the prosecutor to elicit opinion evidence from the gang expert through "improper 'mirror' hypothetical questions" supplanted the jury's fact-finding role in violation of his federal constitutional rights to due process, a fair trial, and a reliable verdict based on evidence found true beyond a reasonable doubt. The Attorney General argues that there was no error.
Before trial, the defense made a motion in limine to limit the gang expert's testimony by barring the use of hypotheticals that only thinly disguise the facts of the case the jury has to decide. The defense rationale was that a gang expert cannot tell jurors "how they should decide any ultimate issue of fact" like "what a defendant was thinking." The court barred the gang expert from answering a hypothetical so "thinly veiled" as to refer to this case and from testifying about what Epps was thinking but allowed him to "testify in general terms in response to hypothetical questions as to what typical gang actions and expectations are in that context."
At trial, the prosecutor posed the following hypothetical to the gang expert:
"I'd ask you to assume hypothetically that two individuals, one of which is an active member of Colonia Bakers criminal street gang, the other is an active member of Peckerwoods. I'd ask you to assume that both individuals served time in prison, and that these two individuals enter a car driven by a white male.
"I'd ask you to assume hypothetically at some point both individuals produce knives and press blades up against the victim's body. The victim's wallet is taken, including a Kern Schools ATM card.
"I'd ask you to assume hypothetically that the victim is then instructed to drive to a Kern Schools Bank where he is ordered to reveal his pin number.
"I'd ask you to assume hypothetically that money is then withdrawn from the victim's account by the Colonia Bakers gang member. The victim is then ordered to drive to additional locations. Along the way both gang members make threats to the victim and the victim's family. [¶] Along the way the Colonia Bakers gang member throws the victim's cell phone out of the sunroof of the car and at the final location that the two gang members meet with a connected party.
"I'd ask you to assume hypothetically that items of personal property are then removed from the victim, including his shoes, wallet, keys, and identification cards.
"I'd ask you to assume hypothetically that both gang members both drive off with the connecting party, leaving the victim and his car behind.
"I'd ask you to assume hypothetically that the Peckerwoods gang member is found a short time later in a hotel room and with him are several items belonging to the victim.
"I'd also ask you to assume, finally, hypothetically that the Colonia Bakers gang member is seen leaving the parking lot of that same hotel."
The defense interjected, "Improper hypothetical." Sustaining the objection, the court later noted the absence of any evidence that Cardenas or Epps had served time. That led to the stipulation that both had "served prison time" and "were confined at the Wasco State Prison complex, Inmate Reception Center, at the same time." Adding "one other factor" to the hypothetical, the prosecutor inquired of the gang expert, "I'd ask you to assume hypothetically in that factual scenario that after leaving the Kern Schools Bank that the individuals stopped off for gas," and asked if he had "an opinion as to whether or not those offenses were committed for the benefit of and furtherance of or in association with a criminal street gang." Characterizing the question as an "improper hypothetical," the defense made a record, outside the presence of the jury, that the question was so close to the facts of the case as to call for an opinion by the officer about guilt or innocence. After the court overruled the objection, the gang expert testified, "That it was - would have been committed for the benefit of, or in association with both the Peckerwoods and the Colonia Bakers."
After the prosecutor asked why, the gang expert testified that "taking a person's property against [one's] will" is "one of the primary activities of both the Colonia Bakers and the Peckerwoods." Threatening a person is another offense that "the gang members participate in," he testified. Buying gas and a hotel room with money from the victim's ATM gives gangs the benefit of transportation and lodging without having to pay, he noted. That both gang members commit a crime together shows "the association factor," he opined, adding that both gangs would receive the benefit of "a margin of respect" due to "the intimidation."
On that record, we turn to the law. The briefs of both parties noted that guidance on the issue here was imminent in a case pending before the California Supreme Court. After the briefing was complete, the court filed the opinion in that case. "It is required, not prohibited, that hypothetical questions be based on the evidence," the court held. "The questioner is not required to disguise the fact the questions are based on that evidence." (People v. Vang (2011) 52 Cal.4th 1038, 1041 (Vang).)
In his briefing, Epps relied on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), in which the gang expert testified "to establish not only [the defendant's] membership in a criminal street gang" but also "his subjective knowledge and intent to possess the handgun," and in which we reversed the judgment on the ground that "the testimony about [the defendant's] subjective knowledge and intent was inadmissible." (Id. at p. 647.) As Epps noted, "Other Court of Appeal decisions have adhered to the Killebrew principle," citing, e.g., People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513, In re Frank S. (2006) 141 Cal.App.4th 1192, 1197-1198, and People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.
The Court of Appeal opinion in Vang, our Supreme Court wrote, "interpreted Killebrew [] as prohibiting hypothetical questions if they too closely track the evidence, then concluded that '[the gang expert's] testimony in response to the two hypothetical questions violated the rule in Killebrew. The only apparent differences between the trial testimony and the hypothetical were the names of the parties." (Vang, supra, 52 Cal.4th at p. 1045.) The Supreme Court approved the hypotheticals eliciting the gang expert's testimony at trial and disapproved "any interpretation of Killebrew[]as barring, or even limiting, the use of hypothetical questions." (Id. at pp. 1045-1047 & fn. 3.)
Vang pointedly rejected the notion "that permitting these hypothetical questions invades the province of the jury." (Vang, supra, 52 Cal.4th at p. 1049.) "The jury still plays a critical role in two respects. First, it must decide whether to credit the expert's opinion at all. Second, it must determine whether the facts stated in the hypothetical questions are the actual facts, and the significance of any difference between the actual facts and the facts stated in the questions." (Id. at pp. 1049-1050.) Here, as in Vang, the court "instructed the jury on both of these roles. It told the jury that 'the meaning and the importance of any [expert] opinion are for you to decide,' and that 'you may disregard any opinion you find to be unbelievable, unreasonable, or unsupported by the evidence.' It also instructed the jury specifically about hypothetical questions: 'In examining an expert witness, the expert witness may be asked a hypothetical question. A hypothetical question asks a witness to assume that certain facts are true and then give an opinion based on those facts. It's up to you to decide whether an assumed fact has, in fact, been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion.'" (Vang, supra, at p. 1050, italics in original, citing, e.g., CALCRIM No. 332.)
Here, as in Vang, the gang expert's testimony that the prosecutor's hypotheticals elicited in no way supplanted the jury's fact-finding role. Even so, by analogizing federal evidentiary rules to the California Evidence Code, Epps argues, "The federal appellate courts have condemned the use of hypothetical questions that so closely track the facts of a case that they are, in reality, impermissible questions about the defendant." Although the Federal Rules of Evidence, like the Evidence Code, state the general rule allowing opinion evidence about an ultimate issue, the federal rules, unlike the Evidence Code, prohibit an expert witness from giving an opinion about defendant's "mental state or condition." So his reliance on federal case law construing the Federal Rules of Evidence is misplaced. (See, e.g., United States v. Boyd (1995) 55 F.3d 667, 669 ["Rule 704(b) is absolutely clear in its proscription… And it is no answer that the Government indulged the subterfuge of a 'hypothetical' question to avoid the Rule. Here, the Rule was violated because the expert was allowed to address a hypothetical that was a carbon copy of the matter before the jury, thus effectively giving a forbidden opinion on the case at hand."]; but see United States v. Goodman (2011) 633 F.3d 963, 970 ["In contrast, other cases have found hypothetical questions mirroring the fact patterns of the trial case permissible when the answering testimony still allows the fact finder to make an additional inference as to whether the defendant had the mental state or condition constituting an element of the crime charged."]
"An opinion is not objectionable just because it embraces an ultimate issue." (Fed. Rules Evid., rule 704(a).)
"Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.)
"In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone." (Fed. Rules Evid., rule 704(b).)
The essential question on adjudication of federal constitutional claims is whether the admission of the evidence at issue "so fatally infected the proceedings as to render them fundamentally unfair." (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919.) The record answers that question in the negative. Additionally, decisions of the lower federal courts, even on federal questions, do not bind the state courts. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) The premise of Epps's federal constitutional claims is that the admission of the evidence at issue was prejudicial error, so those claims likewise fail. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.)
2. Personal-Weapon-Use Enhancements
Epps argues that the personal-weapon-use enhancements must be stricken as neither authorized by law nor supported by facts the jury found true beyond a reasonable doubt. The Attorney General argues the contrary.
The personal-weapon-use enhancement statute in force at the time provided, as relevant here, "(1) Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense. [¶] (2) If the person described in paragraph (1) has been convicted of carjacking or attempted carjacking, the additional term shall be one, two, or three years." (Former § 12022, subds. (b)(1), (b)(2), italics added.)
Counts 1, 2, 3, 6, and 8 each contained identical language alleging "that in the commission or attempted commission of the offense alleged in count(s) two, three, five, six, seven and eight [Epps] personally used a deadly or dangerous weapon, to wit: a knife, within the meaning of Penal Code Section 12022(b)(2)." Nothing referred to the offense alleged in count 1. The personal-weapon-use allegation in count 7 named a codefendant but not Epps.
The court instructed the jury on the personal-weapon-use enhancements with CALCRIM No. 3145. As to all counts other than the count 4 assault with a deadly weapon and the count 7 possession of a deadly weapon with intent to dissuade a witness, the instruction told the jurors their duty was to "decide whether for each crime the People have proved the additional allegation that [Epps] personally used a deadly or dangerous weapon during the commission of that crime." Whether the weapon was deadly or dangerous is not at issue here. Whether he used the weapon is. On that issue, CALCRIM No. 3145 told the jurors, "Someone personally uses a deadly or dangerous weapon if he or she intentionally does any of the following: Displays the weapon in a menacing manner."
In counts 1, 2, 3, 6, 7, and 8, the verdict forms gave the jury the option to find true or not true that Epps, "in the commission or attempted commission of the above offense alleged in count[s 1, 2, 3, 6, 7, or 8,] personally used a deadly or dangerous weapon, to wit: a knife, within the meaning of Penal Code Section 12022(b)(2) as alleged in the [first, second, third, sixth, or eighth] count of the information." The count 7 verdict form gave the jury the option to find the personal weapon use "alleged in count seven" true or not true "within the meaning of Penal Code Section 12022(b) as alleged in the eighth count of the information." (Italics added.)
The probation officer's report noted her initial opinion that the personal-weapon-use allegation was applicable solely to the count 3 kidnapping during a carjacking, since that was the only count "specific to carjacking," as well as the prosecutor's opinion that once the elements of the carjacking were found true the enhancements were applicable to all counts, whether or not "specific to carjacking." The probation officer's report adopted the prosecutor's opinion.
At sentencing, the court stated that the jury made true findings on the personal-weapon-use enhancements on "all counts" although only one "involved a carjacking." The court characterized the statutory language as "somewhat unclear," but neither the court nor the prosecutor found a case that went one way or the other. On the rationale "that if there was a guilty verdict of carjacking" those enhancements were applicable "to all counts," the court imposed consecutive two-year middle terms on the ones in counts 2, 3, and 6 and imposed and stayed two-year middle terms on the ones in counts 1, 7, and 8. (§ 654.)
Although the reporter's transcript shows that the court imposed and stayed the sentence on count 7 - two components of which were the three-year aggravated term for possession of a deadly weapon with intent to dissuade a witness and the two-year middle term for the personal-weapon-use enhancement - the abstract of judgment fails to reflect the enhancement.
"On a plain reading of the statute," Epps argues, "section 12022, subdivision (b)(2) has no application to this case as a matter of law." His rationale is that he "has not been convicted of carjacking or attempted carjacking under section 215." He fails to persuade us. Carjacking is a lesser included offense of kidnapping during a carjacking. (People v. Ortiz (2002) 101 Cal.App.4th 410, 415; People v. Jones (1999) 75 Cal.App.4th 616, 626; People v. Contreras (1997) 55 Cal.App.4th 760, 765; see also People v. Medina (2007) 41 Cal.4th 685, 690.) So when the jury found him guilty beyond a reasonable doubt of kidnapping during a carjacking, the jury found true beyond a reasonable doubt each and every element of the lesser included offense of carjacking.
With commendable candor, the Attorney General acknowledges, "What is less clear is whether section 12022, subdivision (b)(2), applies to the other counts." Even if, as the court opined, the statutory language is "somewhat unclear," we are persuaded that subdivisions (b)(1) and (b)(2), read together, apply the two-year enhancement that the latter authorizes and that the court imposed to the count 3 kidnapping during a carjacking and apply the one-year enhancement that the former authorizes to all other counts with proper true findings by the jury. (Cf. People v. Palacios (2007) 41 Cal.4th 720, 723, 727-733; People v. Guilford (1984) 151 Cal.App.3d 406, 411.) Epps committed several qualifying offenses eligible for the one-year enhancement that the former authorizes but only one qualifying offense eligible for the two-year enhancement that the latter authorizes and that the court imposed.
On that premise, we turn to the personal-weapon-use enhancements that the court imposed and stayed on counts 1 and 7. Count 1 alleged personal weapon use solely as to the offenses alleged in "count(s) two, three, five, six, seven and eight," so the jury lacked a proper foundation to make a true finding of personal weapon use in the commission of the offense alleged in count 1. (Italics added.) Count 7 alleged personal weapon use solely by a codefendant, so the jury lacked a proper foundation to make a true finding of personal weapon use by Epps in the commission of the offense alleged in count 7. The information failed to give him the requisite notice, so we will modify the judgment by striking the personal-weapon-use enhancements that the court imposed and stayed on counts 1 and 7. (Cf. People v. Lohbauer (1981) 29 Cal.3d 364, 367-370; People v. Mancebo (2002) 27 Cal.4th 735, 747; § 1170.1, subd. (e).)
In the interest of judicial economy, since the sentencing errors and the appellate remedies are clear, we modify the judgment without requesting supplemental briefing. Any party wishing to address the issue may do so in a petition for rehearing. (Gov. Code, § 68081.)
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Next, we turn to the two-year personal-weapon-use enhancements that the court imposed on counts 2 and 6 and imposed and stayed on count 8, all purportedly on the authority of section 12022, subdivision (b)(2). Since the information alleged, and the jury found true, only the requisite facts for one-year personal-weapon-use enhancements to those counts (§ 12022, subd. (b)(1)), we will modify the judgment by substituting the imposition of one-year personal-weapon-use enhancements on counts 2 and 6 and the imposition and stay of a one-year personal-weapon-use enhancement on count 8. (People v. Tardy (2003) 112 Cal.App.4th 783, 788-789; People v. Shoaff (1993) 16 Cal.App.4th 1112, 1117-1118.)
Finally, we turn to the two-year personal-weapon-use enhancement that the court imposed on count 3. Since the information alleged, and the jury found true, the requisite facts, that enhancement stands. (§ 12022, subd. (b)(2).)
3. Prior-Prison-Term Enhancements
Epps argues, the Attorney General agrees, and we concur that all but two of the prior-prison-term enhancements should be stricken. The information included multiple allegations of Epps's service of the same two prison terms, all of which the court found true. The court correctly imposed two prior-prison-term enhancements to the sentence imposed on the count 2 kidnapping to commit a robbery but incorrectly imposed and stayed two prior-prison-term enhancements for the same two prison terms on other counts. Since prior prison term enhancements are status enhancements that the court can impose only once, we will modify the judgment by ordering the relief that Epps requests. (People v. Edwards (2011) 195 Cal.App.4th 1051, 1060; § 667.5, subd. (b).)
4. Abstract of Judgment
Epps argues, the Attorney General agrees, and we concur that an amended abstract of judgment should issue to correct three errors in the original. The abstract of judgment fails to show Epps's count 1 conviction of conspiracy to commit a kidnapping (§§ 182, subd. (a)(1), 209, subd. (b)(1)), incorrectly showing the crime as kidnapping without a target crime involving unknown conspirators; fails to show his count 2 conviction of kidnapping to commit a robbery (§ 209, subd. (b)(1)), incorrectly showing the crime as kidnapping to commit robbery, rape, or penetration with a foreign object; and fails to show his count 3 conviction of kidnapping during a carjacking (§ 209.5, subd. (a)), incorrectly showing the crime as possession of a firearm in violation of probation. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
For lack of the requisite notice, the personal-weapon-use enhancements the court imposed and stayed on counts 1 and 7 are stricken from the judgment. (§ 12022, subd. (b)(2).) For lack of the requisite pleading and proof, the two-year personal-weapon-use enhancements the court imposed on counts 2 and 6 and imposed and stayed on count 8 are stricken from the judgment (§ 12022, subd. (b)(2)), and the imposition of one-year personal-weapon-use enhancements on counts 2 and 6 and the imposition and stay of a one-year personal-weapon-use enhancement on count 8 are substituted into the judgment (§ 12022, subd. (b)(1)). For improper imposition and stays, the prior-prison-term enhancements on all counts other than count 2 shall be stricken from the judgment. (§ 667.5, subd. (b).)
The matter is remanded for the issuance of an amended abstract of judgment showing the foregoing modifications to the judgment and incorporating the following amendments to the original abstract of judgment. Count 1 shall show a conviction of conspiracy to commit a kidnapping. (§§ 182, subd. (a)(1), 209, subd. (b)(1).) Count 2 shall show a conviction of kidnapping to commit a robbery. (§ 209, subd. (b)(1).) Count 3 shall show a conviction of kidnapping during a carjacking. (§ 209.5, subd. (a).)
After the issuance of an amended abstract of judgment, the court shall send a certified copy to the Department of Corrections and Rehabilitation. Epps has no right to be present at those proceedings. (See People v. Virgil (2011) 51 Cal.4th 1210, 1234-1235.) In all other respects, the judgment is affirmed.
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Gomes, J.
WE CONCUR:
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Levy, Acting P.J.
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Dawson, J.