Blog Jay Leiderman Law

THE DEFENSE MOVES TO EXCLUDE ALL TRIAL WITNESSES FROM THE COURTROOM AND ADMONISH SAID WITNESSES NOT TO DISCUSS THE CASE AMONG THEMSELVES (PENAL CODE SECTION 867, EVIDENCE CODE SECTION 777) [EXCLUDE WITNESSES]

            Evidence Code section 777 entitled “Exclusion of Witness” provides in pertinent part that “[the] court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.” (Italics added.) The purpose of the order is to prevent tailored testimony and aid in the detection of less than candid testimony. (Geders v. United States (1976) 425 U.S. 80, 87 [47 L.Ed.2d 592, 598‑599, 96 S.Ct. 1330]; People v. Valdez (1986) 177 Cal.App.3d 680, 687.)

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At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

jury trial exclude witnesses trial jury evidence

JAY LEIDERMAN, AFTER FREEING A CLIENT FROM JAIL AFTER 83 DAYS. THE CLIENT WAS LOOKING AT 72 YEARS PLUS 5 LIFE SENTENCES ON TOP OF THAT. 10 MONTHS LATER JAY GOT THE CLIENT DECLARED FACTUALLY INNOCENT.

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

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MEMORANDUM OF POINTS AND AUTHORITIES REGARDING DEFENDANT’S ABILITY TO USE THE MEDICAL MARIJUANA DEFENSE (PROP 215 and SB 420) VIA TESTIMONY OF A CONFIDENTIAL INFORMANT

STATEMENT OF FACTS

Defendant is charged with providing medical marijuana to a friend that he knew to be a recommended and approved patient.  Defendant is a grower and transporting member for a collective, authorized by the collective to grow, deliver and receive compensation for medicine.  This motion does not target the identity of the confidential informant.  Defendant has known the CI for well over 20 years and knows him to be a medical patient within the meaning of the medical marijuana program act (SB 420).  The CI is a member of the defendant’s collective.  Defendant has checked CI’s MMJ recommendation myriad times over the years.  CI engaged in a lawful transaction with Mr. D and had it monitored by the police.  CI recorded phone calls with Mr. D that tell tales of a lawful transaction.

Defendant has previously brought a motion for a redacted copy if CI’s medical recommendation.  We were given the current recommendation, but not the one that was in place for December 5, 2013 (the date charged as the offense date). Accordingly, the People have not even complied with discovery orders already made.

Since the initial discovery order, the People have taken the position that the CI will not be called or mentioned at preliminary hearing, that the People are taking the position that it is Mr. D’ burden to prove his defense.  Indeed, it is there province to do so.  However, in this case, we do not know where the CI lives, so we cannot subpoena him into court to prove that he was a lawful patient, a part of the same collective that Mr. D belongs to, and was purchasing marijuana within the course and scope of that collective.

In other words, we must be given the CI’s address and whereabouts to subpoena him into court to prove our defense, unless the People wish to agree that CI was a lawful patient with a valid medical recommendation who had been a member of the same collective as Mr. Dfor many years.  If the People will not stipulate to these facts, the defense must have a live witness.

The defense will also intend to call other witnesses to prove the existence and validity of the collective.  Even so, CI is the most important – indeed the defense will likely rise and fall with him.  Because the Police chose to turn this lawful transaction into a “CI” situation, and because the People took so long to charge this case, Defendant has lost touch with CI.  CI, knowing that he betrayed a long term friend, has dropped out of sight from all common social groups and has moved his residence.  Defense Counsel has given the Prosecutor the name and date of birth of the CI.  She has failed to produce him.  Defendant will be denied the substantial right to put on the medical marijuana defense at preliminary hearing if the CI is not produced.

Defendant only uses the term CI in this motion to allow the People to use their discretion and get rid of this clear-cut case of a lawful medical marijuana transaction without burning their snitch.

 

 

ARGUMENT

I.                   THE PEOPLE MUST DISCLOSE THE MEDICAL INFORMATION – AS IT RELATES TO A MARIJUANA AFFIRMATIVE DEFENSE – OF AN INFORMANT WHO PARTICIPATED IN THE ALLEGED CRIME AND IS THE SOLE MATERIAL WITNESS TO DEFENDANT’S CONDUCT.

This case requires the state’s confidential informant privilege to give way to Defendant’s right to a fair trial.  The privilege, set forth in Evid. Code §§ 1041-1042, allows the state to “refuse to disclose the identity of a person who has furnished information [to law enforcement] purporting to disclose a violation of a law of . . . this state.”  (Evid. Code § 1041(a).)  However, this privilege is far from absolute.  § 1042(d) specifically provides that a defendant may “demand[] disclosure of the identity of the informant on the ground the informant is a material witness on the issue of guilt,” and requires the court hold an evidentiary hearing.  If the court finds a “reasonable possibility that nondisclosure might deprive the defendant of a fair trial,” the court must either order disclosure or dismiss the case.  (§ 1042(d); see also People v. Lawley (2002) 27 Cal.4th 102, 159 [“the prosecution must disclose the name of an informant who is a material witness in a criminal case or suffer dismissal of the charges against the defendant”].)

The “most important principle” that springs from the case law governing the disclosure of informants’ identities “is that the prosecution cannot successfully invoke the privilege for nondisclosure of an informant’s identity if the defendant demonstrates a reasonable possibility that the informer could give evidence on the issue of guilt that might result in defendant’s exoneration.”  (People v. Tolliver (1975) 53 Cal.App.3d 1036, 1043 [emphasis in original].)  “Obviously, the participant-informant presents the clear-cut example of an informant who is a material witness on the issue of guilt or innocence.”  (Ibid.)  “Disclosure is required where the informer participated in the crime with which the defendant is charged.”  (People v. Williams (1958) 51 Cal.2d 355, 358-359.)

Here, there is much more than a “reasonable possibility” that the informant is a material witness on the issue of guilt.  Rather, the issue is “clear-cut”: the informant was a direct participant in the alleged narcotics transaction.  The informant is the only person who can competently testify about what happened and what arrangement had been previously made.  Moreover, the reasons for the CI to end a 20 year friendship in a pool of lies is equally relevant.  What crime was the CI working off?  Why did the CI lie to the police to get defendant caught up in this mess?  These are questions to which the defendant is entitled to an answer.

Any attempt to prove a violation of Health & Safety Code § 11379 beyond a reasonable doubt without giving Defendant the opportunity to question the informant and to have compulsory process is bound to violate this state’s hearsay evidence rules and the Sixth Amendment’s confrontation clause.  (See Crawford v. Washington (2004) 541 U.S. 36.).  That is, failure to disclose the informant’s identity, medical marijuana recommendation and the surrounding reasons for his becoming a CI will deprive Defendant of a fair trial.  Defendant is therefore entitled to discovery of the informant’s identity.

In sum, the confidential informant in this case is a material witness on the question of guilt.  Therefore, fundamental fairness and Evidence Code § 1042 require disclosure of the informant’s identity.  This court must order the People to disclose it.  If they do not, the case must be dismissed.

 

II.    DEFENDANT HAS A SUBSTANTIAL RIGHT TO PRESENT HIS MEDICAL MARIJUANA DEFENSE AT his PRELIMINARY HEARING.

“Medical marijuana” is an affirmative defense.   The defendant is required to assert the affirmative defense and raise a reasonable doubt that the possession was unlawful.  (See People v. Mower (2002) 28 Cal.4th 457, 473 [finding that the statutory medical-marijuana defense (Health and Safety Code § 11362.5) did not create a “complete” immunity from arrest or prosecution for the illegal cultivation and possession of marijuana and law enforcement officers are not required to conduct an adequate investigation of the defendant’s status as a qualified patient or primary caregiver prior to his or his arrest].)   People v. Mower authorizes the defense to be raised both at the preliminary examination and via Penal Code § 995 motions (motions to dismiss the information or indictment after a preliminary hearing or grand jury), and may also support a non-statutory motion to dismiss a misdemeanor.  (Id. at p. 470 [stating that a “statutory provision that grants a defendant a limited immunity from prosecution may serve as a basis for a motion to set aside an indictment or information prior to trial, as well as a basis for a defense at trial”]; see also People v. Konow (2004) 32 Cal.4th 995 [finding that, at any time in the proceeding, a defendant may ask the court to dismiss an information or complaint “in the interests of justice” under Penal Code § 1385, even though that section does not itself provide a formal procedural device].).

To deny Mr. D the ability to raise his affirmative defense denies him a substantial right at the preliminary hearing stage.  The fact “that a defendant has no right formally to move for dismissal under section 1385 does not negate the defendant’s substantial right to the magistrate’s consideration whether to exercise a power explicitly granted to the magistrate by that statute, nor does it mean that a defendant has not been denied a substantial right if the magistrate erroneously and prejudicially fails to consider whether to exercise that power.” (People v. Konow, supra, 32 Cal.4th at pp. 1001-02.)  The Konow court noted:

In People v. Pompa-Ortiz (1980) 27 Cal.3d 519 . . . we held that the defendant had a “substantial right” to a public preliminary examination and that this right was “denied” when the preliminary examination was closed [citations omitted], [and] we cited several decisions standing for the proposition that “denial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion.”

(Id. at pp. 1022-23 [internal footnote omitted].)  The California Supreme Court concluded that “the superior court may set aside an information under section 995 when the magistrate erroneously and prejudicially failed to consider whether to dismiss a complaint in furtherance of justice under section 1385, and thereby denied the defendant a substantial right affecting the legality of the commitment.”  (Id. at p. 1027.)

Here, Defendant has a “substantial right” to present his medical marijuana defense.  However, that right will be denied unless the court acts.

III.  DEFENDANT HAS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO PRESENT THE EXCULPATORY TESTIMONY OF CI.

D has a constitutional right to compel the Collective Witnesses to be witnesses at his preliminary hearing.  Both the Sixth Amendment right to compulsory process[1] and the Fourteenth Amendment right to due process of law[2] provide the basis for this right.  The Supreme Court has recognized the relationship between the Sixth and Fourteenth Amendments in this context: it is a “fundamental element of due process” that an accused “has the right to present his own witnesses to establish a defense.”  (Washington v. Texas (1967) 388 U.S. 14, 19.)  Just as denying a defendant’s request to put on the stand a competent witness with personal knowledge “relevant and material to the defense” violates the Sixth Amendment, (see id. at p. 23), so does a state prosecutor’s suppression of evidence “material to guilt or to punishment” violate the Fourteenth.  (Brady v. Maryland (1963) 373 U.S. 83, 87.)

In the instant case, the witnesses are crucial to D’s right to mount a medical marijuana defense.  CI has unique personal knowledge with respect to his role in the Collective, as well as the details of this transaction and the preceding transactions.  The testimony of the Collective Witnesses is not just “relevant” or “material” to a medical marijuana defense; it is absolutely necessary.  It is D’sconstitutional right to require their presence.

In that CI has already received immunity for the transaction charged herein, there are no 5th Amendment issues in this case.

 

 

 

[1] “In all criminal prosecutions, the accused shall enjoy the right to . . . have compulsory process for obtaining witnesses in his favor . . . .”  (U.S. Const., 6th Amend.)

[2] “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .”  (U.S. Const., 14th Amend.)

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Rules for Sentencing a Criminal Defendant

Decisions related to sentencing a criminal defendant that criminal courts must take into account include “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425. In other words: “For the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Gregg v. Georgia (1976) 428 U.S. 153, 189.  The scope of “circumstances in aggravation or mitigation” under Penal Code section 1170(b) is, therefore, coextensive with the scope of inquiry under the similar phrase in Penal Code section 1203.

The Judicial Council has enumerated a number of factors that help guide us toward what an appropriate plea and sentence are in a particular case.  They will be reviewed in detail later in this brief.  They are illuminating herein.

Counsel must also provide relevant materials to the court such that the court, in sentencing a criminal defendant, may impose a just and reasonable sentence and to correct errors in the probation report which might have a negative impact on the sentence imposed by the court. People v. Valdivia (1960) 182 Cal.App.2d 145; People v. Peterson (1973) 9 Cal.3d 717, 726; People v. Fang (1997) 54 Cal.App.4th 669, 677-678.) Preparing statements in mitigation to aid the court in its decision to grant probation or impose a lesser sentence is a commonplace part of the practice of law. (Pen. Code §§ 1204, 1170(b); Cal. Rules Ct. 4.437.)

In In re Rodriguez the court released defendant from further incarceration after a 22 year sentence because “[I]t appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Id. at 655.) In the Rodriguez case, a conviction for violating Penal Code section 288 was at issue where Rodriguez had received a life term.  The court engaged in a cruel and unusual punishment analysis pursuant to the Lynch, supra case.  “[Rodriguez] was only 26 years old at the time of the offense… Thus, it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.”  (Id. At 655.)

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At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

Sentencing a Criminal Defendant truth in evidence Prop 115 Prop 8 Evidence Code section 352

Jay Leiderman has tried dozens of cases to a jury – with spectacular results!

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

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THE DEFENSE MOVES FOR AN ORDER THAT THE PROSECUTION WITNESSES NOT TO KNOWINGLY TESTIFY TO INADMISSIBLE EVIDENCE

A prosecutor commits error when his/her witness knowingly testify to inadmissible evidence. [People v. Basuta (2001) 94 CA4th 370(polygraph) People v. Aragon (1957) 154 Cal.App.2d 646 (same, “the district attorney must instruct his witnesses. He cannot do indirectly what he is forbidden to do directly) “A prosecutor must guard against volunteer statements from his witnesses.” (People v. Baker (1956) 147 Cal.App.2d 319) (D took a polygraph); People v. Bentley (1955) 131 CA2d 687, 690 (prior conviction).)

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At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

prevent witnesses from knowingly testifying to inadmissible evidence

Jay Leiderman on his way to a high profile case in federal court

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

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“The district court’s finding that Naranjo was involved in a five-kilogram cocaine transaction does not preclude a finding of sentencing entrapment. We now address Naranjo’s alternative argument that the district court erred in not finding that the government engaged in sentencing entrapment.”  U. S. v. Naranjo 52 F.3d 245 (1995) (sentencing entrapment)

 

From an email sent by Dennis Roberts on 16 November 2010, in reply to an email soliciting a second chair on a jury trial case involving the below-described judge (name redacted).  

It ain’t me as second chair as that total prick, Judge XXX hates my guts.  He banished me from his courtroom  After he did that I had another case assigned to him.  I reminded him of my banishment.  He denied he had ever banished me.  I said, “maybe you don’t remember but the transcript does” (said off the top of my head – I have no idea whether it was in the transcript or not).  So he said to the AUSA, can’t you relate this to another case.  AUSA said he couldn’t think of any.  I suggested that since there were thousands of cases on the docket titled United States v. Smith,   U.S. v Jones, etc that they could just relate it to one of those. In Federal Court, a judge can relate a case to another if one of the parties is identical so although I was joking when I suggested that, kidding that since the US was a party in every criminal case the Judge could relate it to any US v whatever.  Of course, the Judge and the AUSA knew I was joking, but the next thing I knew I got a note telling me the case was assigned to Judge YYY (best judge in that division of the district) and had a tremendous result from him.  Now, if you want to get away from Judge XXX join me as second chair and you’ll see how fast they spin the wheel again.  Good luck  He is a total prick.

I reminded him of my banishment

I could tell you dozens of stories but one of the best is that he said he would keep out a State PROSECUTION, not a conviction, for cocaine about 12 years ago which had been thrown out of State Court pre-trial on Fourth Amendment grounds, IF I would not raise something as a defense, I now remember what it was:  He told me not to suggest that my client knew nothing about cocaine.  That was pretty easy. This was the case that got me banished.  Anyhow the prosecution rests their case, I rest mine, and the evil Judge turns to the AUSA and says I will let you reopen to bring in that cocaine prosecution as Mr. Roberts “opened the door”.   I said, “that’s just not true what did I do or say that opened the door”.  He refused to answer.  I was at the podium at the time.  I was so angry that I was holding a pencil which I threw down on the podium really hard.  Eraser hit and it bounced into the air hitting his clerk on the head.  I could just apologize or go with my true feelings which were that I was so angry I let all my anger out and flopped down at council table with tears of frustration and anger saying “I just can’t take this anymore”.  The prosecutor, a kind of decent guy, came over and put his arm around me and told the judge we should adjourn for the day.  I drove home (about an hour with no traffic) and when I arrived my associate met me in the driveway and told me, “The prosecutor just called and asked me to tell you he wasn’t going to introduce that evidence and for me to get a good night’s sleep”.

Sentencing entrapment

and the evil judge sez …

Part of XXX’s animus was that after I saw he was going to fuck me no matter what I did (he didn’t believe my client’s story which I also had difficulty believing) I decided to fuck with him.  So every night (I was working till 4 and 5 in the morning) I would send him a fax.  The faxes were nuts, little chatty notes about my evening, how my kids were angry that I was never home, how the TV said it would rain tomorrow so I might be late, shit like that.  One day he says “Mr Roberts, there is something wrong with your fax machine.  I got one today when I arrived in my chambers and it said it was send at 4 a.m.”  Oh, thank you your Honor.  I will fix it when I get home  I sent it at 5 a.m.  After a few more of those he told me “do not send me another fax” so that night I sent him a fax which said “I’m not sure what you are saying.  Can I not send you a fax about the litigation or if I am ill, or no faxes at all no matter how important?”  He never said another word about the faxes which kept coming.

He is a shill for the prosecution and that is one of his better traits

Enjoy Judge XXX. It will be the worst experience of your life.  He is a shill for the prosecution and that is one of his better traits.  Oh; the reason he hated me in the cocaine case (the one causing my banishment) is that Bill Panzer and I took U. S. v. Naranjo 52 F.3d 245 (1995) (sentencing entrapment) to the 9th and reversed him.  Sentencing entrapment means that the Govt could get a much higher mandatory minimum if it were 5 kilos he agreed to buy from the narcs, not just one or two. It doubled the mandatory minimum from 5 to 10 years. Actually I just remembered what Judge XXX didn’t want me to raise – that my guy knew nothing about cocaine which would have been ludicrous but I guess the judge thought I might do it so he said he’d keep out the 12 year old prosecution, never was a conviction, if I didn’t suggest my guy knew nothing about cocaine. Fair enough. Then he tried to screw me and the client.  Rumor had it that he was going to the Ninth Circuit Court of Appeals and that idiotic decision of his was the kiss of death.

An excerpt from Naranjo is below.

Sentencing entrapment

This one sort of speaks for itself

52 F.3d at 250-251: “[T]he court ultimately found that sentencing entrapment had not occurred because “if you look at the full situation, it seems pretty clear that [the DEA] had a pretty good reason to believe that [Naranjo] had been heavily involved in drug trafficking.” This statement lacks the specificity required by Conkins, especially since it fails to provide any 251*251 finding relevant to the critical issue of Naranjo’s predisposition to engage in a five-kilogram cocaine transaction.”

251: “In the absence of specific findings on the record, we are uncertain as to what findings the district court relied on in finding Naranjo predisposed to cocaine dealing”

also at page 251: “Because the district court provided no factual findings on the record, we are unable to ascertain what facts it relied upon in finding that Naranjo did not adequately prove sentencing entrapment.”

That’s an Appellate Court that was not happy with Judge XXX.

 

A brief biography of Dennis Roberts

For a more detailed biography click here.  For his law practice, see: http://www.dennisrobertslaw.com/

I spent the summer of ’63 as a law student, then 1964-1966 as a young attorney working with C. B. King in [Albany] All-Benny, Georgia. I returned after I graduated law school at U. C. Berkeley where my then wife started the Albany Georgia Nursery School with C. B.’s wife, Carol King. It was enormously successful as it provided Head Start with living proof that you could run an interracial school in the deep South.

We then moved to NY where I was the first staff employee of the Center for Constitutional Rights (Arthur Kinoy, Bill Kunstler, Morty Stavis) I was there for three years and we returned to Berkeley where I did all the pre-trial work with Michael Tigar in the Chicago 8 and Angela Davis cases.

Among many, many others, I also represented Dennis Banks and we fought Dennis’ case for 13 years to a very successful conclusion. 

Dennis Roberts

Dennis Roberts, in his law office in Oakland, California

All written content (c) Dennis Roberts

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