Assembly Bill No. 53–Assemblyman Carpenter

Prefiled January 22, 1999

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Referred to Committee on Judiciary

 

SUMMARY—Makes various changes concerning safety of children and schools. (BDR 15-127)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: Yes.

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to public safety; providing for an increased penalty for felonies committed under certain circumstances that threaten the safety of pupils and school employees; revising certain provisions governing the definition of first degree murder; establishing for the purposes of the death penalty an aggravating circumstance relating to murders committed under certain circumstances that threaten the safety of pupils and school employees; revising various provisions relating to juveniles who commit certain unlawful acts; making various other changes concerning the safety of pupils and school employees; providing penalties; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. NRS 193.161 is hereby amended to read as follows:

1-2 193.161 1. Except as otherwise provided in subsection 2 and NRS

1-3 193.169, any person who commits a felony on the property of a public or

1-4 private school, at an activity sponsored by a public or private school or on a

1-5 school bus while the bus is engaged in its official duties shall be punished

1-6 by imprisonment in the state prison for a term equal to and in addition to the

1-7 term of imprisonment prescribed by statute for the crime. The sentence

1-8 prescribed by this section must run consecutively with the sentence

1-9 prescribed by statute for the crime.

1-10 2. [This section] Unless a greater penalty is provided by specific

1-11 statute and except as otherwise provided in NRS 193.169, in lieu of an

1-12 additional term of imprisonment as provided pursuant to subsection 1, if

1-13 a felony that resulted in death or substantial bodily harm to the victim

1-14 was committed on the property of a public or private school when pupils

2-1 or employees of the school were present or may have been present, at an

2-2 activity sponsored by a public or private school or on a school bus while

2-3 the bus was engaged in its official duties, and the person who committed

2-4 the felony intended to create a great risk of death or substantial bodily

2-5 harm to more than one person by means of a weapon, device or course of

2-6 action that would normally be hazardous to the lives of more than one

2-7 person, the felony may be deemed a category A felony and the person who

2-8 committed the felony may be punished by imprisonment in the state

2-9 prison:

2-10 (a) For life without the possibility of parole;

2-11 (b) For life with the possibility of parole, with eligibility for parole

2-12 beginning when a minimum of 20 years has been served; or

2-13 (c) For a definite term of 50 years, with eligibility for parole beginning

2-14 when a minimum of 20 years has been served.

2-15 3. Subsection 1 does not create [any] a separate offense but provides an

2-16 additional penalty for the primary offense, [whose] the imposition of which

2-17 is contingent upon the finding of the prescribed fact. Subsection 2 does not

2-18 create a separate offense but provides an alternative penalty for the

2-19 primary offense, the imposition of which is contingent upon the finding of

2-20 the prescribed fact.

2-21 [3.] 4. For the purposes of this section, "school bus" has the meaning

2-22 ascribed to it in NRS 483.160.

2-23 Sec. 2. NRS 193.169 is hereby amended to read as follows:

2-24 193.169 1. A person who is sentenced to an additional term of

2-25 imprisonment pursuant to the provisions of subsection 1 of NRS 193.161,

2-26 NRS 193.162, 193.163, 193.165, 193.167, 193.1675, 193.168 or 453.3345

2-27 must not be sentenced to an additional term of imprisonment pursuant to

2-28 any of the other listed sections even if the person’s conduct satisfies the

2-29 requirements for imposing an additional term of imprisonment pursuant to

2-30 another one or more of those sections.

2-31 2. A person who is sentenced to an alternative term of imprisonment

2-32 pursuant to subsection 2 of NRS 193.161 must not be sentenced to an

2-33 additional term of imprisonment pursuant to subsection 1 of NRS

2-34 193.161, NRS 193.162, 193.163, 193.165, 193.167, 193.1675, 193.168 or

2-35 453.3345 even if the person’s conduct satisfies the requirements for

2-36 imposing an additional term of imprisonment pursuant to another one or

2-37 more of those sections.

2-38 3. This section does not:

2-39 (a) Affect other penalties or limitations upon probation or suspension of

2-40 a sentence contained in the sections listed in subsection 1 [.] or 2.

2-41 (b) Prohibit alleging in the alternative in the indictment or information

2-42 that the person’s conduct satisfies the requirements of more than one of the

3-1 sections listed in subsection 1 or 2 and introducing evidence to prove the

3-2 alternative allegations.

3-3 Sec. 3. NRS 200.030 is hereby amended to read as follows:

3-4 200.030 1. Murder of the first degree is murder which is:

3-5 (a) Perpetrated by means of poison, lying in wait [, torture or child

3-6 abuse,] or torture, or by any other kind of willful, deliberate and

3-7 premeditated killing;

3-8 (b) Committed in the perpetration or attempted perpetration of sexual

3-9 assault, kidnaping, arson, robbery, burglary, invasion of the home, sexual

3-10 abuse of a child , [or] sexual molestation of a child under the age of 14

3-11 years [;] or child abuse;

3-12 (c) Committed to avoid or prevent the lawful arrest of any person by a

3-13 peace officer or to effect the escape of any person from legal custody [.] ;

3-14 or

3-15 (d) Committed on the property of a public or private school, at an

3-16 activity sponsored by a public or private school or on a school bus while

3-17 the bus was engaged in its official duties by a person who intended to

3-18 create a great risk of death or substantial bodily harm to more than one

3-19 person by means of a weapon, device or course of action that would

3-20 normally be hazardous to the lives of more than one person.

3-21 2. Murder of the second degree is all other kinds of murder.

3-22 3. The jury before whom any person indicted for murder is tried shall, if

3-23 they find him guilty thereof, designate by their verdict whether he is guilty

3-24 of murder of the first or second degree.

3-25 4. A person convicted of murder of the first degree is guilty of a

3-26 category A felony and shall be punished:

3-27 (a) By death, only if one or more aggravating circumstances are found

3-28 and any mitigating circumstance or circumstances which are found do not

3-29 outweigh the aggravating circumstance or circumstances; or

3-30 (b) By imprisonment in the state prison:

3-31 (1) For life without the possibility of parole;

3-32 (2) For life with the possibility of parole, with eligibility for parole

3-33 beginning when a minimum of 20 years has been served; or

3-34 (3) For a definite term of 50 years, with eligibility for parole

3-35 beginning when a minimum of 20 years has been served.

3-36 A determination of whether aggravating circumstances exist is not necessary

3-37 to fix the penalty at imprisonment for life with or without the possibility of

3-38 parole.

3-39 5. A person convicted of murder of the second degree is guilty of a

3-40 category A felony and shall be punished by imprisonment in the state

3-41 prison:

3-42 (a) For life with the possibility of parole, with eligibility for parole

3-43 beginning when a minimum of 10 years has been served; or

4-1 (b) For a definite term of 25 years, with eligibility for parole beginning

4-2 when a minimum of 10 years has been served.

4-3 6. As used in this section:

4-4 (a) "Child abuse" means physical injury of a nonaccidental nature to a

4-5 child under the age of 18 years;

4-6 (b) "School bus" has the meaning ascribed to it in NRS 483.160;

4-7 (c) "Sexual abuse of a child" means any of the acts described in NRS

4-8 432B.100; and

4-9 [(c)] (d) "Sexual molestation" means any willful and lewd or lascivious

4-10 act, other than acts constituting the crime of sexual assault, upon or with the

4-11 body, or any part or member thereof, of a child under the age of 14 years,

4-12 with the intent of arousing, appealing to, or gratifying the lust, passions or

4-13 sexual desires of the perpetrator or of the child.

4-14 Sec. 4. NRS 200.033 is hereby amended to read as follows:

4-15 200.033 The only circumstances by which murder of the first degree

4-16 may be aggravated are:

4-17 1. The murder was committed by a person under sentence of

4-18 imprisonment.

4-19 2. The murder was committed by a person who, at any time before a

4-20 penalty hearing is conducted for the murder pursuant to NRS 175.552, is or

4-21 has been convicted of:

4-22 (a) Another murder and the provisions of subsection 12 do not otherwise

4-23 apply to that other murder; or

4-24 (b) A felony involving the use or threat of violence to the person of

4-25 another and the provisions of subsection 4 do not otherwise apply to that

4-26 felony.

4-27 For the purposes of this subsection, a person shall be deemed to have been

4-28 convicted at the time the jury verdict of guilt is rendered or upon

4-29 pronouncement of guilt by a judge or judges sitting without a jury.

4-30 3. The murder was committed by a person who knowingly created a

4-31 great risk of death to more than one person by means of a weapon, device or

4-32 course of action which would normally be hazardous to the lives of more

4-33 than one person.

4-34 4. The murder was committed while the person was engaged, alone or

4-35 with others, in the commission of or an attempt to commit or flight after

4-36 committing or attempting to commit, any robbery, arson in the first degree,

4-37 burglary, invasion of the home or kidnaping in the first degree, and the

4-38 person charged:

4-39 (a) Killed or attempted to kill the person murdered; or

4-40 (b) Knew or had reason to know that life would be taken or lethal force

4-41 used.

5-1 5. The murder was committed to avoid or prevent a lawful arrest or to

5-2 effect an escape from custody.

5-3 6. The murder was committed by a person, for himself or another, to

5-4 receive money or any other thing of monetary value.

5-5 7. The murder was committed upon a peace officer or fireman who was

5-6 killed while engaged in the performance of his official duty or because of an

5-7 act performed in his official capacity, and the defendant knew or reasonably

5-8 should have known that the victim was a peace officer or fireman. For the

5-9 purposes of this subsection, "peace officer" means:

5-10 (a) An employee of the department of prisons who does not exercise

5-11 general control over offenders imprisoned within the institutions and

5-12 facilities of the department but whose normal duties require him to come

5-13 into contact with those offenders, when carrying out the duties prescribed by

5-14 the director of the department.

5-15 (b) Any person upon whom some or all of the powers of a peace officer

5-16 are conferred pursuant to NRS 289.150 to 289.360, inclusive, when

5-17 carrying out those powers.

5-18 8. The murder involved torture or the mutilation of the victim.

5-19 9. The murder was committed upon one or more persons at random and

5-20 without apparent motive.

5-21 10. The murder was committed upon a person less than 14 years of age.

5-22 11. The murder was committed upon a person because of the actual or

5-23 perceived race, color, religion, national origin, physical or mental disability

5-24 or sexual orientation of that person.

5-25 12. The defendant has, in the immediate proceeding, been convicted of

5-26 more than one offense of murder in the first or second degree. For the

5-27 purposes of this subsection, a person shall be deemed to have been

5-28 convicted of a murder at the time the jury verdict of guilt is rendered or

5-29 upon pronouncement of guilt by a judge or judges sitting without a jury.

5-30 13. The person, alone or with others, subjected or attempted to subject

5-31 the victim of the murder to nonconsensual sexual penetration immediately

5-32 before, during or immediately after the commission of the murder. For the

5-33 purposes of this subsection:

5-34 (a) "Nonconsensual" means against the victim’s will or under conditions

5-35 in which the person knows or reasonably should know that the victim is

5-36 mentally or physically incapable of resisting, consenting or understanding

5-37 the nature of his conduct, including, but not limited to, conditions in which

5-38 the person knows or reasonably should know that the victim is dead.

5-39 (b) "Sexual penetration" means cunnilingus, fellatio or any intrusion,

5-40 however slight, of any part of the victim’s body or any object manipulated

5-41 or inserted by a person, alone or with others, into the genital or anal

5-42 openings of the body of the victim, whether or not the victim is alive. The

6-1 term includes, but is not limited to, anal intercourse and sexual intercourse

6-2 in what would be its ordinary meaning.

6-3 14. The murder was committed on the property of a public or private

6-4 school, at an activity sponsored by a public or private school or on a

6-5 school bus while the bus was engaged in its official duties by a person

6-6 who intended to create a great risk of death or substantial bodily harm to

6-7 more than one person by means of a weapon, device or course of action

6-8 that would normally be hazardous to the lives of more than one person.

6-9 For the purposes of this subsection, "school bus" has the meaning

6-10 ascribed to it in NRS 483.160.

6-11 Sec. 5. NRS 62.040 is hereby amended to read as follows:

6-12 62.040 1. Except if the child involved is subject to the exclusive

6-13 jurisdiction of an Indian tribe, and except as otherwise provided in this

6-14 chapter, the court has exclusive original jurisdiction in proceedings:

6-15 (a) Concerning any child living or found within the county who is in

6-16 need of supervision because he:

6-17 (1) Is a child who is subject to compulsory school attendance and is a

6-18 habitual truant from school;

6-19 (2) Habitually disobeys the reasonable and lawful demands of his

6-20 parents, guardian or other custodian, and is unmanageable; or

6-21 (3) Deserts, abandons or runs away from his home or usual place of

6-22 abode,

6-23 and is in need of care or rehabilitation. The child must not be considered a

6-24 delinquent.

6-25 (b) Concerning any child living or found within the county who has

6-26 committed a delinquent act. A child commits a delinquent act if he violates

6-27 a county or municipal ordinance or any rule or regulation having the force

6-28 of law, or he commits an act designated a crime under the law of the State of

6-29 Nevada.

6-30 (c) Concerning any child in need of commitment to an institution for the

6-31 mentally retarded.

6-32 2. For the purposes of subsection 1, each of the following acts shall be

6-33 deemed not to be a delinquent act, and the court does not have jurisdiction

6-34 of a person who is charged with committing such an act:

6-35 (a) Murder or attempted murder and any other related offense arising out

6-36 of the same facts as the murder or attempted murder, regardless of the

6-37 nature of the related offense.

6-38 (b) Sexual assault or attempted sexual assault involving the use or

6-39 threatened use of force or violence against the victim and any other related

6-40 offense arising out of the same facts as the sexual assault or attempted

6-41 sexual assault, regardless of the nature of the related offense, if:

7-1 (1) The person was 16 years of age or older when the sexual assault or

7-2 attempted sexual assault was committed; and

7-3 (2) Before the sexual assault or attempted sexual assault was

7-4 committed, the person previously had been adjudicated delinquent for an act

7-5 that would have been a felony if committed by an adult.

7-6 (c) An offense or attempted offense involving the use or threatened use

7-7 of a firearm and any other related offense arising out of the same facts as the

7-8 offense or attempted offense involving the use or threatened use of a

7-9 firearm, regardless of the nature of the related offense, if:

7-10 (1) The person was 16 years of age or older when the offense or

7-11 attempted offense involving the use or threatened use of a firearm was

7-12 committed; and

7-13 (2) Before the offense or attempted offense involving the use or

7-14 threatened use of a firearm was committed, the person previously had been

7-15 adjudicated delinquent for an act that would have been a felony if

7-16 committed by an adult.

7-17 (d) A felony resulting in death or substantial bodily harm to the victim

7-18 and any other related offense arising out of the same facts as the felony,

7-19 regardless of the nature of the related offense, if:

7-20 (1) The felony was committed on the property of a public or private

7-21 school when pupils or employees of the school were present or may have

7-22 been present, at an activity sponsored by a public or private school or on

7-23 a school bus while the bus was engaged in its official duties; and

7-24 (2) The person intended to create a great risk of death or substantial

7-25 bodily harm to more than one person by means of a weapon, device or

7-26 course of action that would normally be hazardous to the lives of more

7-27 than one person.

7-28 (e) Any other offense if, before the offense was committed, the person

7-29 previously had been convicted of a criminal offense.

7-30 3. If a child is charged with a minor traffic offense, the court may

7-31 transfer the case and record to a justice’s or municipal court if the judge

7-32 determines that it is in the best interest of the child. If a case is so

7-33 transferred:

7-34 (a) The restrictions set forth in subsection 5 of NRS 62.170 are

7-35 applicable in those proceedings; and

7-36 (b) The child must be accompanied at all proceedings by a parent or

7-37 legal guardian.

7-38 With the consent of the judge of the juvenile division, the case may be

7-39 transferred back to the juvenile court.

7-40 4. As used in this section, "school bus" has the meaning ascribed to it

7-41 in NRS 483.160.

8-1 Sec. 6. Section 1 of Assembly Bill No. 262 of this session is hereby

8-2 amended to read as follows:

8-3 Section 1. (Deleted by amendment.)

8-4 Sec. 7. Section 2 of Assembly Bill No. 262 of this session is hereby

8-5 amended to read as follows:

8-6 Sec. 2. NRS 62.170 is hereby amended to read as follows:

8-7 62.170 1. Except as otherwise provided in NRS 62.175 and

8-8 section 2 of Assembly Bill No. 221 of this [act,] session, a peace

8-9 officer or probation officer may take into custody any child:

8-10 (a) Who the officer has probable cause to believe is violating or

8-11 has violated any law, ordinance or rule or regulation having the

8-12 force of law; or

8-13 (b) Whose conduct indicates that he is a child in need of

8-14 supervision.

8-15 2. Except as otherwise provided in this section, section 2 of

8-16 Assembly Bill No. 221 of this [act] session and NRS 484.383, if a

8-17 child is taken into custody:

8-18 (a) The officer shall [immediately] , without undue delay,

8-19 attempt to notify , if known, the parent, guardian or custodian of the

8-20 child [, if known, and the] ;

8-21 (b) The facility in which the child is detained shall, without

8-22 undue delay:

8-23 (1) Notify a probation officer; and

8-24 [(b)] (2) Attempt to notify, if known, the parent, guardian or

8-25 custodian of the child if such notification was not accomplished

8-26 pursuant to paragraph (a); and

8-27 (c) Unless it is impracticable or inadvisable or has been

8-28 otherwise ordered by the court, the child must be released to the

8-29 custody of his parent or other responsible adult who has signed a

8-30 written agreement to bring the child to the court at a stated time or

8-31 at such time as the court may direct. The written agreement must be

8-32 submitted to the court as soon as possible. If this person fails to

8-33 produce the child as agreed or upon notice from the court, a writ

8-34 may be issued for the attachment of the person or of the child

8-35 requiring that the person or child, or both of them, be brought into

8-36 the court at a time stated in the writ.

8-37 3. Except as otherwise provided in this section and section 2 of

8-38 Assembly Bill No. 221 of this [act,] session, if a child who is taken

8-39 into custody is not released pursuant to subsection 2:

8-40 (a) The child must be taken without unnecessary delay to:

8-41 (1) The court; or

9-1 (2) The place of detention designated by the court [,] and, as

9-2 soon as possible thereafter, the fact of detention must be reported to

9-3 the court; and

9-4 (b) Pending further disposition of the case, the court may order

9-5 that the child be:

9-6 (1) Released to the custody of the parent or other person

9-7 appointed by the court;

9-8 (2) Detained in such place as is designated by the court,

9-9 subject to further order of the court; or

9-10 (3) Conditionally released for supervised detention at the

9-11 home of the child in lieu of detention at a facility for the detention

9-12 of juveniles.

9-13 4. Except as otherwise provided in section 2 of Assembly Bill

9-14 No. 221 of this [act,] session, if a child is alleged to be delinquent

9-15 or in need of supervision, the child must not, before disposition of

9-16 the case, be detained in a facility for the secure detention of

9-17 juveniles unless there is probable cause to believe that:

9-18 (a) If the child is not detained, he is likely to commit an offense

9-19 dangerous to himself or to the community, or likely to commit

9-20 damage to property;

9-21 (b) The child will run away or be taken away so as to be

9-22 unavailable for proceedings of the court or to its officers;

9-23 (c) The child was brought to the probation officer pursuant to a

9-24 court order or warrant; or

9-25 (d) The child is a fugitive from another jurisdiction.

9-26 5. If a child is not alleged to be delinquent or in need of

9-27 supervision, the child must not, at any time, be confined or detained

9-28 in:

9-29 (a) A facility for the secure detention of juveniles; or

9-30 (b) Any police station, lockup, jail, prison or other facility in

9-31 which adults are detained or confined.

9-32 6. If a child is less than 18 years of age, the child must not, at

9-33 any time, be confined or detained in any police station, lockup, jail,

9-34 prison or other facility where the child has regular contact with any

9-35 adult who is confined or detained therein and who has been

9-36 convicted of a crime or charged with a crime, unless:

9-37 (a) The child is alleged to be delinquent;

9-38 (b) An alternative facility is not available; and

9-39 (c) The child is separated by sight and sound from any adults

9-40 who are confined or detained therein.

9-41 7. If a child who is alleged to be delinquent is taken into

9-42 custody and detained, the child must be given a detention hearing,

9-43 conducted by the judge or master:

10-1 (a) Within 24 hours after the child submits a written application;

10-2 (b) In a county whose population is less than 100,000, within 24

10-3 hours after the commencement of detention at a police station,

10-4 lockup, jail, prison or other facility in which adults are detained or

10-5 confined;

10-6 (c) In a county whose population is 100,000 or more, within 6

10-7 hours after the commencement of detention at a police station,

10-8 lockup, jail, prison or other facility in which adults are detained or

10-9 confined; or

10-10 (d) Within 72 hours after the commencement of detention at a

10-11 facility in which adults are not detained or confined,

10-12 whichever occurs first, excluding Saturdays, Sundays and holidays.

10-13 A child must not be released after a detention hearing without the

10-14 written consent of the judge or master.

10-15 8. If the parent, guardian or custodian of the child appears with

10-16 or on behalf of the child at a detention hearing, the judge or master

10-17 shall provide to him a certificate of attendance which he may

10-18 provide to his employer. The certificate of attendance must set forth

10-19 the date and time of appearance and the provisions of NRS 62.900.

10-20 The certificate of attendance must not set forth the name of the child

10-21 or the offense alleged.

10-22 9. Except as otherwise provided in subsection 10, if a child

10-23 who is alleged to be in need of supervision is taken into custody and

10-24 detained, the child must be released within 24 hours, excluding

10-25 Saturdays, Sundays and holidays, after his initial contact with a

10-26 peace officer to his parent, guardian or custodian, to any other

10-27 person who is able to provide adequate care and supervision, or to

10-28 shelter care, unless the court holds a detention hearing and

10-29 determines the child:

10-30 (a) Has threatened to run away from home or from the shelter;

10-31 (b) Is accused of violent behavior at home; or

10-32 (c) Is accused of violating the terms of his supervision and

10-33 consent decree.

10-34 If the court makes such a determination, the child may be detained

10-35 for an additional 24 hours after the hearing, excluding Saturdays,

10-36 Sundays and holidays, if needed by the court to make an alternative

10-37 placement. Such an alternative placement must be in a facility in

10-38 which there are no physically restraining devices or barriers. A

10-39 child must not be detained pursuant to this subsection for a total

10-40 period in excess of 48 hours, excluding Saturdays, Sundays and

10-41 holidays.

10-42 10. If a child who is alleged to be in need of supervision is

10-43 taken into custody and detained, the child need not be released

11-1 pursuant to subsection 9, if the court holds a detention hearing and

11-2 determines the child:

11-3 (a) Is a ward of a federal court or held pursuant to federal

11-4 statute;

11-5 (b) Has run away from another state and a jurisdiction within the

11-6 state has issued a want, warrant or request for the child; or

11-7 (c) Is accused of violating a valid court order.

11-8 If the court makes such a determination, the child may be detained

11-9 for such an additional period as necessary for the court to return the

11-10 child to the jurisdiction from which he originated or to make an

11-11 alternative placement. Such an alternative placement must be in a

11-12 facility in which there are no physically restraining devices or

11-13 barriers.

11-14 11. During the pendency of a criminal or quasi-criminal charge

11-15 of a crime excluded from the original jurisdiction of the juvenile

11-16 court pursuant to NRS 62.040, a child may petition the juvenile

11-17 court for temporary placement in a facility for the detention of

11-18 juveniles.

11-19 12. In determining whether to release a child pursuant to this

11-20 section to a person other than his parent, guardian or custodian,

11-21 preference must be given to any person related within the third

11-22 degree of consanguinity to the child who is suitable and able to

11-23 provide proper care and guidance for the child.

11-24 Sec. 8. Assembly Bill No. 262 of this session is hereby amended by

11-25 adding thereto a new section to read as follows:

11-26 Sec. 3. This act becomes effective at 12:01 a.m. on October 1,

11-27 1999.

11-28 Sec. 9. The amendatory provisions of this act do not apply to offenses

11-29 committed before October 1, 1999.

11-30 Sec. 10. This act becomes effective at 12:02 a.m. on October 1, 1999.

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