Filed 9/3/26 P. v. Quay CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A174368
v.
JUSTIN JOHN QUAY, (Humboldt County
Super. Ct. Nos. CR2403982;
Defendant and Appellant.
CR2500129)
Defendant Justin John Quay resolved two separately-filed cases by
pleading guilty to all charges and admitting an enhancement. On appeal, he
raises three claims of error. First, he contends the punishment for his
misdemeanor convictions should have been stayed under Penal Code1 section
654 because his offenses were part of an indivisible course of conduct.
Second, he argues that the trial court abused its discretion under section
1385 in declining to strike the enhancement. Finally, Quay contends the
court erred by imposing more than one restitution fine. We agree with
Quay’s first contention, and thus order the terms on the misdemeanor
convictions stayed. We otherwise affirm the judgment.
1 Undesignated statutory references are to the Penal Code.
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I. BACKGROUND
An information (Case No. CR2403982) filed in Humboldt County
Superior Court charged Quay with felony petty theft with theft-related priors
(§ 666.1; count 1); misdemeanor petty theft (§ 488; count 2); and
misdemeanor tampering with a vehicle or its contents (Veh. Code, § 10852;
count 3). The information alleged that Quay had suffered a prior strike
conviction. (§ 667, subds. (b)–(i).)
A separate information (Case No. CR2500129) charged Quay with
felony petty theft with theft-related priors (§ 666.1; count 1); misdemeanor
second degree burglary of a vehicle (§ 459; count 2); and misdemeanor
tampering with a vehicle or its contents (Veh. Code, § 10852; count 3). The
information alleged that Quay had suffered a prior strike conviction (§ 667,
subds. (b)–(i)) and was out on bail or on his own recognizance at the time he
committed his offenses (§ 12022.1, subd. (b)).
Quay pleaded guilty to all counts in both cases and admitted the on-bail
enhancement in case number CR2500129. After Quay entered his pleas, the
trial court struck the prior strikes.
The trial court sentenced Quay in case number CR2403982 to
consecutive terms of two years for count 1, six months for count 2, and six
months for count 3. The court sentenced him in case number CR2500129 to
concurrent terms of six months each for counts 2 and 3 and to an eight-month
term for count 1, to run consecutively to the sentence in case number
CR2403982. The court also sentenced Quay to a consecutive term of two
years for the on-bail enhancement in case number CR2500129 and applied
180 days of custody credits to each misdemeanor count in case number
CR2403982. The court imposed various fines and fees, including separate
$600 restitution fines for each case.
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II. DISCUSSION
A. Section 654
Quay contends the trial court erred by not staying the sentences on the
misdemeanor counts in case numbers CR2403982 and CR2500129 pursuant
to section 654’s prohibition against double punishment. The People respond
that Quay is estopped on this point under California Rules of Court, rule
4.412(b) (hereinafter, rule 4.412(b)), which states that, “[b]y agreeing to a
specified term in prison or county jail under section 1170(h) personally and
by counsel, a defendant who is sentenced to that term or a shorter one
abandons any claim that a component of the sentence violates section 654’s
prohibition of double punishment, unless that claim is asserted at the time
the agreement is recited on the record.” We disagree that Quay is estopped
from raising his section 654 challenge on appeal and further conclude his
misdemeanor sentences should have been stayed.
1. Additional Facts
In August 2025, Quay signed separate plea forms for case numbers
CR2403982 and CR2500129. Both plea forms stated the minimum and
maximum potential sentences for each charge and enhancement except for
the prior strikes, and said Quay wanted to plead guilty or no contest to each
of the listed charges and enhancements. In a separate section of the forms
entitled “Plea Agreement,” the box for “Open Plea” was checked, establishing
that Quay “underst[ood] the maximum and minimum sentences for the
charges, enhancements, and allegations stated” above and that “[n]o one has
made any other promises to [him] about what sentence the court may order.”
Left unchecked were the boxes in this section for identifying a specific or
maximum term of imprisonment. The forms further indicated that the “prior
strike” will be stricken. No other terms were specified.
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At the plea hearing, Quay pleaded guilty to all counts and admitted the
on-bail enhancement but not the prior strike allegations. The court
subsequently asked for the “basis for striking” the prior strikes. The parties
responded that it was “part of the negotiated disposition.” Defense counsel
further argued that it was in the interest of justice to strike the prior strike
because Quay “successfully completed Drug Court probation in that matter.”
The court found “an adequate basis to strike the prior strikes” and struck
them accordingly. The court then proceeded to set the matter for sentencing,
at which point counsel noted that “this is an open plea.” The minute order for
the hearing checked the box for “[o]pen plea.”
2. Estoppel
As mentioned, under rule 4.412(b), a defendant is estopped from
challenging his or her sentence based on section 654’s prohibition of double
punishment where the defendant agreed to a “specified term” in prison or
county jail and is sentenced to that term or a shorter one. The People
contend this rule applies here because Quay agreed to a maximum term of
four years in case number CR2403982 and six years and six months in case
number CR2500129.
Rule 4.412(b) “codifie[s] one of the applications of the case law rule that
defendants are estopped from complaining of sentences to which they
agreed.” (People v. Hester (2000) 22 Cal.4th 290, 295.) This rule was applied
in People v. Velasquez (1999) 69 Cal.App.4th 503, where the California
Supreme Court discussed three cases holding that the defendant had waived
objections to unauthorized sentences—including one that violated the
prohibition against double punishment—by agreeing to the sentences in
exchange for substantial benefits. (Id. at p. 506, disagreed with on other
grounds in People v. Superior Court (Sanchez) (2014) 223 Cal.App.4th 567,
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574–575.) The court noted: “The common theme of these cases is that when
the defendant knowingly, intelligently and expressly agrees to certain aspects
of a proposed negotiated disposition, i.e., sentencing irregularities, to obtain
the overall benefits of a negotiated disposition, he is estopped to complain.”
(Ibid.)
The principle is not applicable here. Quay did not expressly agree to
any sentencing irregularity in exchange for a benefit. While the plea forms
contemplated the dismissal of his prior strikes, the record establishes that
sentencing was subject to an open plea, meaning that no promises were made
as to his sentence; Quay faced anything up to and including the maximum
term allowed under the law. (See People v. Williams (1998) 17 Cal.4th 148,
156; People v. Henderson (2021) 67 Cal.App.5th 785, 788 [“[a]n open plea is
one under which there is no promise about the nature or duration of the
defendant’s sentence”].) Indeed, after the trial court struck the prior strikes,
both parties confirmed that sentencing was subject to an open plea. Thus,
this is not a case where the defendant is complaining about a sentence to
which he agreed.
The cases relied on by the People are distinguishable. In People v.
Jones (2013) 217 Cal.App.4th 735, the appellate court relied on dictionary
definitions of the term “specified” to conclude that “a term is ‘specified’ in a
plea agreement even when it is a maximum term,” and not just when it is an
“exact” term, “because it is identified explicitly.” (Id. at p. 745.) In Jones,
however, the defendant agreed to plead no contest to all charges and admit
the enhancement allegations in exchange for a “ ‘lid’ or maximum term in
sentencing.” (Id. at p. 739.) The “lid” was not the “ ‘ “maximum exposure the
defendant would otherwise face” ’ ” absent the plea agreement; rather, it
“ ‘ “constrains the maximum sentence a trial court may impose but is less
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than the [defendant’s] maximum exposure.” ’ ” (Id. at p. 744.) Likewise, in
People v. Cole (2001) 88 Cal.App.4th 850, the plea was not an open plea
because the defendant “did not face the maximum sentence permissible
under the law for all charges and allegations,” which would have been 75
years to life. (Id. at pp. 857–858, 856.) Instead, the defendant agreed to
admit all charges and allegations in exchange for a “maximum possible
sentence [of] 25 years to life.” (Id. at p. 856.)
Here, in contrast, no maximum or exact term was specified in the plea
agreement or at the plea hearing. The plea forms signed by Quay listed the
maximum term of exposure for all charges and enhancements he admitted
but made clear that he was entering an “[o]pen [p]lea” for sentencing. (See
§§ 19, 459, 488, 666.1, 1170, subd. (h); Veh. Code, § 10852.) And no mention
was made at the hearing or at sentencing of a maximum term that was less
than Quay’s maximum exposure under the law for the charges and
enhancement he admitted.2
In short, the People’s estoppel argument fails. We further note that a
section 654 challenge is not forfeited by the defendant’s failure to object at
the time of sentencing. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17,
limited on another ground by People v. Stowell (2003) 31 Cal.4th 1107, 1112–
1113.) We therefore proceed to the merits of Quay’s argument.
3. The Merits
Section 654 “precludes multiple punishments for a single act or
indivisible course of conduct.” (People v. Assad (2010) 189 Cal.App.4th 187,
2 At the plea hearing, the trial court noted the maximum sentence for
the charges and on-bail enhancement. In doing so, the court was not
recognizing a stipulated sentence. Rather, it was satisfying its duty under In
re Yurko (1974) 10 Cal.3d 857 to advise Quay of the possible range of penal
consequences.
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200.) “ ‘Whether a course of criminal conduct is divisible and therefore gives
rise to more than one act within the meaning of section 654 depends on the
intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not
for more than one.’ ” (People v. Rodriguez (2015) 235 Cal.App.4th 1000,
1005.) “ ‘If, on the other hand, defendant harbored “multiple criminal
objectives,” which were independent of and not merely incidental to each
other, he may be punished for each statutory violation committed in pursuit
of each objective, “even though the violations shared common acts or were
parts of an otherwise indivisible course of conduct.” ’ ” (Ibid.)
As there was no discussion at sentencing of section 654, we must affirm
the sentence if an implied finding that section 654 does not apply is
supported by substantial evidence. (See People v. Osband (1996) 13 Cal.4th
622, 730–731.)
Quay asks us to stay the sentences on his misdemeanor offenses under
section 654. He argues that the offenses in case number CR2403982—felony
petty theft, misdemeanor petty theft, and misdemeanor tampering with a
vehicle or its contents—were all carried out “with a single motive: to take
valuable items from the car.” He similarly argues that the charges in case
number CR2500129—felony petty theft, misdemeanor burglary of a vehicle,
and misdemeanor tampering with a vehicle or its contents—“arose from a
single car break-in,” and thus the court should have stayed the misdemeanor
sentences in that case.
The factual basis for Quay’s pleas showed that for both criminal cases,
Quay was caught stealing items from vehicles. The presentence report,
which is the only other source of factual background regarding the offenses in
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the record, corroborated this version of events.3 For case number
CR2403982, the report stated that Quay entered an unlocked vehicle owned
by the victim and was observed taking items from the vehicle. After Quay
was detained, an item belonging to the victim was found in Quay’s shopping
cart. And in case number CR2500129, Quay was observed “rifling through
the” contents in another victim’s vehicle. When the victim confronted Quay,
Quay “removed property from his pockets that he had stolen” from the
vehicle. These facts demonstrate that Quay committed the offenses in case
numbers CR2403982 and CR2500129 with the objective to steal the contents
of his victims’ vehicles. There is no evidence to support a finding that he
“ ‘formed a separate intent and objective for each offense for which he was
sentenced.’ ” (People v. Coleman (1989) 48 Cal.3d 112, 162.)
Accordingly, the sentences on the misdemeanor counts in case numbers
CR2403982 and CR2500129 must be stayed.
B. Section 1385
At sentencing, the trial court denied defense counsel’s request to
dismiss the on-bail enhancement in case number CR2500129 “in the interests
of justice.” Quay argues the court abused its discretion in denying the
request because of the presence of mitigating factors, specifically the non-
violent nature of his offenses and the connection between his mental health
and his offenses, and the absence of “countervailing considerations.”
3 The presentence report was placed in the confidential clerk’s
transcript, but Quay cites and relies on these confidential materials without
seeking to file his brief under seal. We treat this as a waiver of
confidentiality. (People v. Coddington (2000) 23 Cal.4th 529, 617, fn. 38,
overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046,
1069 & fn. 13, and superseded by statute on other grounds as stated in
People v. Zamudio (2008) 43 Cal.4th 327, 355–356; see Cal. Rules of Court,
rule 8.47(c)(2).)
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Reviewing the trial court’s decision for an abuse of discretion (People v.
Carmony (2004) 33 Cal.4th 367, 373, 377), we affirm.
A court “shall dismiss an enhancement if it is in the furtherance of
justice to do so.” (§ 1385, subd. (c)(1).) “In exercising its discretion under this
subdivision, the court shall consider and afford great weight to evidence
offered by the defendant to prove that . . . [certain] mitigating circumstances .
. . are present,” including that “[t]he current offense is not a violent felony as
defined in subdivision (c) of Section 667.5” and that the offense “is connected
to mental illness.” (Id., subd. (c)(1), (c)(2), (2)(D), (2)(F).) “Proof of the
presence of one or more of these circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety.” (Id., subd. (c)(2).)
However, even “absent a finding that dismissal would endanger public
safety, a court retains the discretion to impose” an enhancement if it “finds
substantial, credible evidence of countervailing factors that ‘may nonetheless
neutralize even the great weight of the mitigating circumstance, such that
dismissal of the enhancement is not in furtherance of justice.’ ” (People v.
Walker (2024) 16 Cal.5th 1024, 1029; see also People v. Bravo (2025)
107 Cal.App.5th 1144, 1157 [“[s]ection 1385(c) does not mean that, whenever
a listed mitigating circumstance is present, the trial court must dismiss all
enhancements unless it finds dismissal would endanger public safety”].)
The trial court’s determination of whether dismissal is in furtherance of
justice involves generally applicable sentencing principles concerning matters
such as the defendant’s background, character, and prospects. (People v.
Ortiz (2023) 87 Cal.App.5th 1087, 1097.) These principles require
consideration of aggravating and mitigating circumstances “in the broader
context of the recognized objectives of sentencing, which are not limited to
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public safety.” (Id. at p. 1097, citing Cal. Rules of Court, rule 4.410(a) [listing
sentencing objectives, including “[p]unishing the defendant,” “reducing
recidivism,” and rehabilitation]; see People v. Walker, supra, 16 Cal.5th at
p. 1033 [citing Cal. Rules of Court, rules 4.421 and 4.423 in concluding that
“trial courts retain their discretion to impose an enhancement based on
circumstances ‘long deemed essential to the “furtherance of justice”
inquiry’ ”].) “In determining whether justice would be furthered . . . , the trial
court may obtain information about defendant’s background, character, and
prospects from the probation reports.” (People v. Superior Court (Roam)
(1998) 69 Cal.App.4th 1220, 1228.)
Here, there was substantial evidence of countervailing factors. The
presentence report detailed Quay’s criminal record dating back to 2001 and
noted the presence of two aggravating factors related to his criminal history.
(See Cal. Rules of Court, rule 4.421(b)(2), (3).) Moreover, as the People note,
it is undisputed that Quay committed the offenses in case number
CR2500129 two weeks after he was released on bail in case number
CR2403982. The record further shows that while Quay was granted mental
health diversion in both cases, he did not successfully complete diversion,
resulting in the trial court reinstating criminal proceedings. Together, this
evidence demonstrates that Quay has made little or no progress towards
rehabilitation in more than 20 years as a criminal offender and is unlikely to
do so in the future, such that the trial court could reasonably conclude that it
would not be in the furtherance of justice to dismiss his on-bail enhancement.
Further, contrary to Quay’s suggestion, “[n]othing in the record
demonstrates the trial court failed to assign significant value” to the
mitigating factors cited by Quay in his appellate briefs “or otherwise
misunderstood or misapplied section 1385(c).” (People v. Bravo, supra,
10
107 Cal.App.5th at p. 1157.) Absent evidence to the contrary, we presume
the court knew and correctly applied the law and considered all relevant
factors. (People v. Carmony, supra, 33 Cal.4th at p. 378; People v. Bravo, at p.
1157.)
Accordingly, Quay has not demonstrated the trial court abused its
discretion in declining to strike the on-bail enhancement.
C. The Restitution Fines
Lastly, Quay argues that the trial court erroneously imposed two
restitution fines in a “consolidated” case, resulting in an unauthorized
sentence. We disagree.
1. Additional Facts
At a readiness conference in March 2025, the prosecution stated its
intent to consolidate case numbers CR2403982 and CR2500129 “and try them
together.”
Approximately two months later, Quay filed a motion for mental health
diversion for both cases. At the hearing on the diversion motion, the trial
court granted diversion and the “[c]onsolidation motion.” Later in the
hearing, the court clarified that consolidation would be “for trial purposes”
and that if Quay “fails on diversion, then [they will] reset it for trial, and [the
prosecution will] file the [consolidated] information at that time.” The
minute order for the hearing reflects that consolidation was “granted for trial
purposes” and that the prosecution will “file a unified/consolidated
information in the lead case” if proceedings were reinstated in case numbers
CR2403982 and CR2500129. The order further stated, “Consolidation will be
re-addressed to determine lead case if [mental health diversion] is
terminated.”
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In August 2025, the trial court revoked Quay’s mental health diversion
following the filing of new charges against Quay in an unrelated case. A
week later, a plea agreement was reached in case numbers CR2403982 and
CR2500129. It does not appear from the record that the prosecution ever
filed a consolidated information for those cases.
At sentencing, the trial court imposed a $600 restitution fine in case
number CR2403982 and a separate $600 restitution fine in case number
CR2500129.
2. Analysis
At the time of sentencing in this case, section 1202.4, subdivision (b)
provided in pertinent part: “In every case where a person is convicted of a
crime, the court shall impose a separate and additional restitution fine,
unless it finds compelling and extraordinary reasons for not doing so and
states those reasons on the record.” (§ 1202.4, subd. (b), italics added.)
Based on the italicized language above, Quay argues that the trial
court should have imposed only one restitution fine because case numbers
CR2500129 and CR2403982 were consolidated.
In so arguing, Quay relies on People v. Ferris (2000) 82 Cal.App.4th
1272, which concluded that separate restitution fines were not authorized
where separately filed charges were joined for trial and resolved in one
proceeding. (Id. at pp. 1276–1278.) Prior to trial, the trial court had granted
the prosecutor’s motion to consolidate the two cases “for purposes of trial,”
but the informations were not formally consolidated. (Id. at pp. 1275, 1276,
1277.) Nonetheless, the Ferris court found it “clear that [the defendant] was
substantively tried and sentenced in one joint case.” (Id. at p. 1277.) The
court further concluded that the phrase “ ‘every case’ ” in section 1202.4 was
ambiguous as to whether it encompassed “every separately charged and
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numbered case or every jointly tried case.” (Ibid.) Applying the principle
that courts are to adopt the construction of an ambiguous statute that is
favorable to the defendant, the court concluded that “ ‘every case’ ” “includes
a jointly tried case although it involves charges in separately filed
informations.” (Ibid.)
The Supreme Court subsequently noted that the analysis in Ferris “was
limited to jointly tried cases” and did not apply to “[u]nconsolidated cases
resolved jointly by plea bargain.” (People v. Soria (2010) 48 Cal.4th 58, 64.)
The latter type of cases “remain formally distinct” for purposes of section
1202.4, subdivision (b), “even when they are jointly resolved at the plea and
sentencing stages.” (Ibid.) Soria reasoned that a “ ‘case’ ” is a “formal
criminal proceeding, filed by the prosecution and handled by the court as a
separate action with its own number.” (Id. at pp. 64–65; see id. at p. 64
[“separately filed cases remain separate for purposes of the restitution
statutes”].) “Defendants who commit multiple crimes, and are consequently
before the court in multiple cases when their pleas are taken, are properly
subject to multiple fines. This straightforward application of the requirement
that fines be imposed ‘in every case’ serves the purpose of the state
Restitution Fund, as well as the rehabilitative and deterrent functions of
restitution fines.” (Id. at p. 66.)
Here, case numbers CR2403982 and CR2500129 were filed by the
prosecution as separate cases, involved different crimes and different victims,
and were not jointly tried. While the trial court granted consolidation of the
two cases “for trial purposes,” a fact that distinguishes this case from Soria
(People v. Soria, supra, 48 Cal.4th at p. 63), the cases were never formally
consolidated and were resolved prior to trial. Moreover, neither the parties
nor the court treated the cases as if they were consolidated. Rather, “[a]
13
distinction was made between the two cases throughout both the plea
hearing and the sentencing hearing.” (People v. Wagner (1994)
21 Cal.App.4th 729, 737.) Quay completed a plea form for each case, and he
entered separate pleas in the cases. The trial court sentenced him separately
for each case and awarded different custody credits and imposed separate
fines and fees. Under these circumstances, the two cases remained separate
for purposes of the restitution statutes. (See People v. Soria, at p. 64;
People v. Smith (1992) 7 Cal.App.4th 1184, 1191 [charges are deemed to have
been “tried separately” when they were “not consolidated, either actually or
de facto”].) The trial court did not err in imposing a $600 restitution fine in
each case.
Quay alternatively argues that his counsel rendered ineffective
assistance in failing to request the minimum restitution fine or an ability to
pay hearing.4 “On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance are more
appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013)
4 Subdivision (b)(1) of section 1202.4 establishes the minimum
restitution fine: “The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense. If the person is
convicted of a felony, the fine shall not be less than three hundred dollars
($300) and not more than ten thousand dollars ($10,000). If the person is
convicted of a misdemeanor, the fine shall not be less than one hundred fifty
dollars ($150) and not more than one thousand dollars ($1,000).” (§ 1202.4,
subd. (b)(1).)
14
57 Cal.4th 986, 1009, superseded by statute on other grounds.) The record is
silent as to why defense counsel chose not to object to the amount of the
restitution fines. While Quay contends he was unhoused and unemployed
during the pendency of his criminal cases, it is possible defense counsel did
not object because he knew Quay would have the ability to pay in the future.
(See People v. Aviles (2019) 39 Cal.App.5th 1055, 1076 [courts may consider
the defendant’s ability to pay in the future including the “ ‘ability to obtain
prison wages and to earn money after his release from custody’ ”], disagreed
with on other grounds by People v. Montes (2021) 59 Cal.App.5th 1107, 1116.)
Quay was 42 years old at the time of sentencing and had previous periods of
employment in “the realm of construction and landscaping.” And Quay could
earn between $12 to $56 per month during his prison term. (See People v.
Aviles, at p. 1076.) We cannot say Quay received ineffective assistance of
counsel on direct appeal.
III. DISPOSITION
The judgment is modified to stay the terms of six months on counts 2
and 3 in case number CR2403982 and the terms of six months on counts 2
and 3 in case number CR2500129. As so modified, the judgment is affirmed.
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_________________________
LANGHORNE WILSON, J.
WE CONCUR:
_________________________
BANKE, Acting P. J.
_________________________
SMILEY, J.
People v. Quay / A174368
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