morning your honor is may it please the court mariah read in on behalf of petitioner opponent richard ray is i'm going to see to reserve some three minutes of my time if i can the parties here do not dispute that the giving of the natural and probable consequences instruction in this case was constitutional error the question is whether there was prejudice that is whether mr ray is was prejudiced by the erroneous jury instruction and the prejudice inquiry in this context is focused on the effect that that instruction erroneous instruction had on the jury it is not an examination of the sufficiency of the evidence are standards that are discussed by by respondent it is focused on whether it affected the jury's journey to the verdict and this court has described that as this is not whether the jury could have convicted petitioner under a valid theory but whether it did and in this case there's sufficient evidence in the record to show that at least some jurors were not convinced of mr is liability under the valid theory is though i hope it is clear in our briefing just to clarify the application of the natural and probable consequences instruction in this case it is  him in the murder by shooting next to him that that was a encouragement the third theory the natural probable consequences theory applied in this case if mr ray as was not present if he has liability by providing the firearms to break to commit an assault and the natural and probable consequences of that assault was a murder that is not a valid theory of liability for first degree murder so its defense was that he whether he was the shooter was there correct your honor and i only emphasize it at this point because the district court analyzed it as if you were a co part cope participant in a joint assault how would the natural probable consequences instruction struggle sometimes with the california conditions if havey is is granted here what happens is is is the jury's verdict sufficient so that your client would have been convicted of second degree murder and it becomes the state's decision where the retried on first degree murder that is how the california courts have handled grants of relief based on to the case that made this distinction and that is how the california where the first  conviction were focused on that's correct courts have granted relief by either reducing it to a second degree murder conviction or a retrial on first degree murder without the iranian history instruction and if the court were to grant relief here i believe that the california courts would handle it as as they have been in that in that manner and so looking at what we have to indicate there was prejudice here in this case the jury notes are certainly an indication that the jury focused on mr ray as defense mitt the first jury no asked for review of his brain as is taped statement to the detective this is the statement he did not testify at trial this is the statement where he says i was not present i provided them a gun i participated in this way it was barrett's gotten this is the most direct evidence that supports i the second most direct evidence that supports this theory was the fact well a nother piece of evidence that i want to pin myself to the most persuasive but that sullivan the driver of the vehicle on the night in question who testified that he was present with mr ray as throughout the evening that he his phone records indicate he called whereas on his phone at a time when they would have been together participating in this so the jury was interested in those phone records not the days or hours of testimony that sullivan provided pinpointing and incriminating red eyes but that the evidence that supported this theory that he was not present the jury also focused on testimony from  hernandez another essential essentially another gang member who provided testimony that a lot of his testimony revolved involved a direct statement from ray as that was very incriminating but the jury didn't ask to see that they asked to see the specific portion of his evidence that involved a statement that hernandez had heard that rae as was not present and it was wacky or richard lopez who was the second shooter let me pose a broader question that is given me trouble in other cases too in terms of how courts deal with the problems you raise in this case there are arguments that and you're making arguments that there are indications from what jury did in the course of his deliberation notably in sending out requests and notes that suggest that one or more jurors were struggling with those issues and so it wasn't a sure thing wasn't clear beyond a reasonable doubt that the jurors would have convicted and other times courts wind up discussing the evidence directly as if we're making our own assessment so suppose i look at this case and this is hypothetical but suppose i look at this case as i woud this evidence looks pretty overwhelming it's hard for me to believe that this person wasn't found to be a shooter and you know i look over here and see the jury's asking these questions and looks like there were some jurors that had questions about that well how much post away these different kind of factors from when looking at the evidence directly and trying to glean from jury notes the tealeaves of what the jurors might have been doing your honor and i think most cases that deal with this type of error and instructional error where one there's an invalid theory presented but other valid theories presented struggle with this same issue how do we take a general verdict how do we take this jury process and make sense of it and there's a lot of combing through jury notes and the amount of the length of deliberations and sort of the factors that i've looked at and where relief is granted i think in most cases certainly in for example police or riley mcdaniel and they the court comes down to there is a grave doubt i there cannot i can't ever source yeah from the exactly from the notes from them so even if i would think looking out at myself and what i think reasonable juror would be and again this is hypothetical this is this is this is going to be a conviction if there are enough science from what the jurors actually did you're telling me i should pay attention to the record absolutely honor and i think this court's precedent says that directly and i think rather even mcdaniels one where they reject respond its argument that a rational juror could have found this person guilty under any number of the other two valid theories they reject that that is not enough to establish harmlessness they also reject harmlessness argument where  a deliberation and whether the jury found deliberation they could have convicted him under felony murder which didn't even require deliberation but this court said no even though they could have done that this is not what they could have done this is what did this jury do and this jury could not agree on a personal use allegation they could they sent out multiple notes focused on his defense they deliberated for about fifteen hours over three days they had they struggled with this case that is clear from the record so i think in this context there the court could say there is a grave doubt whether jury was affected by this error and convicted or at least some must have relied on that theory if you want to say i do want to save some time here the judgment here should be affirmed as a threshold matter our just like to note that the relevant inquiry is not specifically what this court saying here today believes the jury did but in fact whether the california supreme court's finding about the shooting and that account the she is also consistent with the other three being members account of the shooting but unlike the two gay members who received the information via gossip or actually from the petitioners direct confession to they are the petitioners accounts had information that only an insider who was actually present at the shooting would have known included logistical details and also embarrassing facts that a gang member bragging to his other his fellow gang members were not included such as the fact that one of them start a panic immediately after the shooting because they saw a patrol call a patrol car right there the fact of the victim was wearing a white shirt that they put the guns in the trash and that there were two shooters  two gang members who did testify about the the confession from petitioners well they knew the general facts but they did not know about the shirt color of the trash cans or the close call with the officer who was a witness that finding is actually helpful and it shows as explained to me how it's helpful question and it shows it shows a little bit about what the jury was actually thinking so in terms of the instructions the jury was instructed by the trial court first and you to determine guilt only if after that point they determined that petitioner had was guilty of murder that it would turn to the three enhancements of the enhancements the final one was the personal use of a firearm enhanced when the jury was instructed that that enhancement requires three elements first that the petitioner discharged firearm second they intended to discharge that firearm and third that proximately caused great bodily injury now during deliberations when they were the jury asked the court for dinner for a definition of proximately cause for purposes of the enhancement about over four and a half hours later the jury returns a note to the court saying that it cannot reach a verdict or reach a finding on that personal use enhanced meant because of the term proximately so it would not be logical for a jury to spend well over four and a half hours deliberating whether he of he would possibly cause great bodily injury if they did not think he was present at the scene and they did not think he shot a gun the that was the third element the first two elements were much easier to get rid of that and to make to have a finding of not true if they thought that he was not present aside from the jury forms and notes that the when it's also clear that the jury did not pull it it also would have been reasonable for the california supreme court to find that the the structural error was harmless the on reasonable doubt in my the overwhelming evidence which is discussed at the briefs and i have touched on a little bit but there were additional information additional factors that also supported the evidence already discussed including the fact that the petition asked the son's mother to buy in save a newspaper covering the murder that is not at all consistent with someone who simply supplied guns and had no idea what was going to have that someone was going to be murdered as a result of that and also as we  petitioner resembled one of the shooters that he saw although he was not one hundred percent sure there was definitely a resemblance do you agree with counsel's understanding that if we were to grant relief and we're to go back to the st t i'm sorry there was a recent proposition passed in california that would be effective as of january first which does discuss the natural natural probable consequences doctrine i'm sorry i'm not unfortunately is bill or whatever it is it may potentially provide relief to defendants who were convict who were possibly convicted of a natural probable consequences possibly but i am i do apologize  either by us taking a direct look at the evidence and we can also take a look at it by trying to figure out what the jurors in this case were doing we review jury verdicts when there are convictions for a sufficiency of the evidence could a reasonable jury reach this conclusion but of course we never do that in the case of an acquittal because that's the end of it so so we don't usually get into the business of trying to evaluate a jury verdict but in the context of this kind of case frequently we do and many of the arguments to us including the ones you just made put us in the position of trying to figure out what this jury was doing and where might have gone if we didn't have this natural improbable consequence the yri on the table can you provide any more guidance to me as to what it is i'm supposed to look at as a just the facts and make an assessment for myself as to whether a reasonable jury could have reached any conclusion other than conviction or how much do i take into account what the jury actually did hear well because a because this  whether no reasonable fair minded jurist could agree with that finding and to the extent that we're looking through that level of deference then we would look at the california supreme court's findings say ok how how could they have reaches confusion and we can look to the evidence the overwhelming evidence that he was the shooter and also to the jury's know some questions because in this as applied in this case actually very helpful to see what was going through their minds that they did think that petition er was present he was a shooter there really wasn't as i look at the record any other direct testimony you know that put a gun in his hand that he was farming there was evidence testimony from the driver who ground so there is direct testimony of a percent of one of the driver who was present and the petitioner was in fact on the shooters there was also evidence from two other gang members that petitioner confessed to them on separate occasions that he was a shooter or that he was present for that shooting and then moreover there was kate bullet casings from two different guns so the fact that there was an eyewitness who found who's who identify petitioner as resembling one of the shooters the fact they only saw one just shows that might have had more to do with a vantage point because there was ballistic evidence that there were in fact two different shooters to touch on if you want to or two of the points that were raised the jury's inability to agree on the personal use allegation and responded characterizes it is obviously clear that the jury must agree he was  shooter and only on proximately but there it is not consistent with the jury obviously agreeing that he is the shooter when we already know that the jury has spent eleven hours deliberating the first degree murder where if he was  shooter there really is nothing left to deliberate the jury had the same option and for the personal use allegation the valid options they just didn't have the natural probable consequences instruction they didn't have to find it was his ball it they didn't have to find that all they had to find is he was there so if they were so convinced he was there then in the application approximately as if they were instructed and as the da argued it to them there really would be no issue wanted to point that out and lastly the s b fourteen thirty seven i'm no expert at all but i have looked into in other cases it's specifically to address indirect liability to felony murder and conspiracy theory it's not i don't think directly applicable before you sit down explain to me why you think the california supreme court's resolution of this was you know on reasonable under  colleagues or you may have come out another way but to say that no fair minded jurist could reach that conclusion help me understand your position there your honor because the only way they could have found that is if they completely ignored all the evidence in the record that supported ray as his defense and the jury's conduct and grappling with his defense of not being present i understand there was significant evidence of valid theories but i think in this specific type of instructional air context where there is valid and invalid theories the courts the supreme court and this court have dealt with that by satisfying constitutional error and proceeding to a prejudice analysis under brecht and and with specific instruction for the how how this court is to go through that process of looking at did this jury do that do the do the legally valid theory and i don't think you could reasonably fin where the california supreme court could have and i extensively perhaps over extensively addressed it in my opening brief why i thought the california supreme court decision was unreasonable but thank you thank you counsel we appreciate your arguments this morning thank you very much matter submitted at this time