proceed on the theory that she had assaulted eighty employee of the bank of america there was one employee in the bank at the time that brewer entered with this hoax device strapped to her stomach pretending that it was a bomb words you can be afraid of a number of things if someone jumps out of a corner and says boo to you and scares you you may be afraid but that's nice not necessarily an assault i think the emphasis should be on the intent of the person who is causing the person and none of those qualities or none of those elements were met in this particular case because the ruse required that our client perera potential pretend that she was solicitous of palmero that they were both in this together that they had to cooperate in order to forestall any action by the bad guys so so can coercion qualifies an attempted battery and mental coercion qualify as an attempted battery under california law i wish i were twenty five years younger and might be flexible enough to answer that question i think strictly speaking if you look at the definitional requirements that it would not be we're not saying that this is california courts i'm not weighed in on this that an assault just from the old days onwards requires that unlawful attempt to commit a battery or to apply to apply force to it to another person and again as part of the  conspiracy and if she told a coworker that she had a bomb which would blow up both of them that's not an attempted battery that's not up an attempt to use to inflict bodily harm i'm not sure that that was ever said to be quite frank i think what did she say those are two separate things got that ok so so but what about what about her telling that i've got a bomb strapped to me that this is this does not present any kind of coercion or attempt at ali harman or threat to bodily harm to her coworker it's not statement in this case is not give me the money or nobody gets hurt or in the typical hoax bomb situation where the guy comes up with a birthday cake with the needle on it and says give me the money or all that you're going to go it's not that type it's a different type of court is bringing up the concerns that the court is bringing up go to the other problem of the of the robbery statute in other words there's two prongs life in jeopardy and assault now if you go to the life in jeopardy problem this certainly is and probably conclusive because i'm sure that woman was scared to death and i'm sure she felt her life was in jeopardy but the government failed to charge that in the indictment no but twenty one thirteen d d requires only  quote and then an intent to and in fact generating a reasonable reasonable application in the victim plus a threat to inflict bodily harm correct and what wound up all the elements present here because she never bomb strapped to my body and left to get the money out the door we're both going to be blown up isn't that a threat again i'm not sure but i don't believe if you're not sure that a jury question you know i but i believe that the way that the court is phrasing it against the purported victim that's because you didn't say i'm going to blow you up correct she said i'm going to blow us up i don't know that's where perhaps we part ways because i respectfully i'm not sure if that appears in the transcripts because according she did follow the script to the letter and according to the script it would not make any sense for her to take it in a sense get out of character by threatening the other person because the whole ruse is that we're both in this together and these terrible people have stopped there and that threat the root of the threat unless we get the money out the door we're both going to get blown up isn't that a threat i don't i'm not sure i'm not sure if that appears in the transcripts and other words i think she stuck to the script so well that language that effect slight why does that even matter because because because people understand what it means when you say i've got a bomb strapped to me i'm standing next to you tell me i've got a bomb strapped next to me i understand i'm concerned for your like i'm a mate may well also it they say that you have to do specific things and you have to possess a specific intent and including oddly enough the present ability to give harm to the other person that's obviously lacking in this case because if it's a hoax bomb you can't hurt anybody with it but we are conceding that hoax bomb is a dangerous weapon for purpose of the statute but we are not conceding is that the bomb was used to assault the other person because any definition of assault is not met by the conduct of the defendant here and the answer try to answer the court's query what does it have to do is that it would not make any sense for heard another word she does not expect to get arrested to be prosecuted for this it's a hoax it's a hoax within a hoax so in order to carry out her role in the hoax she can't break character and say all right give me the money or i'm going to blow you up as a typical aggravated bank robbery defendant would be she has to play along and in no way did she act aggressively or threaten the other person and asked as to a judge had to she misquote about what we're going to be blown out i'm not sure if it actually appears anywhere in the case because i think again with  role playing i think she stuck to the role of science or so well that all of the fear was aimed towards yourself they were going to blow me up you know help me out let's unload the money is this your co counsel did you agree to share cross examination of key witnesses in this case and it becomes a a concern because it was just more than th judge said we're not doing that this is what does that have to do with this trial completely cut off the questioning from there and as a matter of fact had counsel been allowed to explore further lso was a was a medic had always been characterized by these kinds of darkly humorous sarcastic joking exchanges and it was precisely the nature that was what biggest content the bigger continue was the nature of that exchange in the between cars and vega where it was alleged that he confessed to the bank robbery it was a joke he said yeah i confessed to withers but you've got about a minute left don't you want to make a point about severance well i do and i am in the tough position of not having made a record of  this is the way and this becomes really important when you get into the evidence which should have been should have never been admitted regarding vegas romantic relationships or his which is the amorous relationships that mr vega have with all these women should have never been the jury should have never been exposed what's the standard for severance where would be manifestly prejudicial ok so where's the manifest prejudice and how was the district or supposed to know that from the outset well from opening statements the district court heard of or counsel and it should've been obvious to the district court i would think so but it was but it was not just the biggest council it was obvious to vegas council to the extent that he tried to say he was a casanova but i don't know what it was you're telling me that it was it was obvious to the district court that he should've severed the trial but it wasn't obvious to vegas coun argument that the defenses were mutually irreconcilable yes i mean this isn't a case of being mutually exclusive but to the extent that it was  united states attorney christina shea united states after a five day trial and jury convicted defendant pereira and her boyfriend defendant vega of robbing a bank using a hoax explosive device i will reasonable are reasonably cause another person to fear bodily harm or planned the robbery displayed the hoax of the device to her coworker told the coworker not to call police because she did not want quote nobody to get hurt the evidence then the witness would quote the district court judge in answering the next question so there are a lot there that was there in interference with the right of confrontation i know your honor i defendant has not did not in his briefing identify any specific area of cross examination for closed before this court he talked about how i mr close to the district court did not let in discussion about  this was just a continuing part of the relationship between the two and this kind of dark humor they gave in your honor he did he did talk about how they had a joking relationship he talked about how there wasn't actually millions stolen from the bank robbery and then that's that is in a sense exactly what defense counsel wanted to elicit from this witness which he did  was that without discussion of mr baker's anatomy in addition there are limited instructions as his court has approved in scott with respect to the trial court's comments in this case not i guess carry this that's just to let the things that i guess one thing that troubles me is that they did make a motion to sever and that was denied but it seemed to me her tiny garage struck a bunch of her told her to go robbing a jury could have quit both defendants if they believed her kidnapping story and believed a good story that he had nothing to do with that kidnapping this is very different from the decision to dick where there are two defendants one stabbing and only one person could have stabbed the sky it's also different from a field where the drugs are under the control of one defendant only  argument is serious in this case because you can't wait until the jury comes back with a verdict you don't like in order to say oh i was prejudiced there was a problem here and that's under this court's decision and sullivan has never raised and that it's been waived by both parties but i thought it was where i moved for severance and renewed that motion after trial how was that waiver of the facts of sullivan are exactly the same in this case there's a pretrial motion for severance it was not renewed during trial before the jury verdict was returned and there was a post trial motion in that case this court said there's a waiver because the defendant can't sit back wait for doesn't like after the evidence comes in and i stay on the court that everything should have been severed now  and i burst testimony and her closing also highlights that vega was a very small and unnecessary part of her defense her testimony was ninety percent about the kidnapping what happened to her and then some part about how you know she had been given material about his womanizing and then you're also struck by in this case the false alibi that she in vegas agreed to that part of the story reinforces each other she says and he says they got into a fight that night and that's why he wasn't there at the robbery he was at a rite aid buying her an apology card and said that's why he couldn't have been part of that operate he did not know aster b robbery according to him according to her she had nothing to do with that she wasn't contact with him because of this fight that's mutually reinforcing not mutually exclusive and again during trial there's no real objection