the court probably should be aware by now i believe the hell he's essentially conceded that there was an error under people in the jury was erroneous lee struck the right so the question is harmlessness and i'll get right to the heart of what where my concern is with your argument as the prosecutor stated to the jury with respect to the gang special circumstance this in has one requires that the defendant have an intent to  kill and the instructions were to that effect as well the jury unanimously found that to be true so why don't we know for sure that that is the mental state that the jury found and not the sort of no longer valid natural and probable consequence well i think if we look at the cases i hope in the court about a week ago i submitted the twenty right i don't want to hear about the cases i want to hear about the logic of what i just said what's wrong with that well i believe that the jury's finding is still flawed and because the jury was told explicitly by the prosecutor during her argument that for the jurors could have found the defendant was the actual perpetrator they could have found that he was a director in a better and for them could have found that he was guilty under the theory of natural in theory that's correct but in the face of that special finding in which all of them were found and intent to kill understood it was how that might slop over and and made it ambiguous as to what happened here we have no joint trial correct that's correct ok but in rest your honor if i ma jury was similarly instructed to think the reason for guilty under natural improbable consequence theory the court noted that these special circumstances struction did not include the language willfulness premeditation and deliberation we have the same deficiency in this case and that the special circumstances struction did not include that which i believe what makes raised a little bit more pronounced in this case is in ras the state courts had actually made findings this case was not true error at the time that the case was pending in the state courts was still yet to be decided as the appellee felt comfortable raising in their return that there was no to air it was not until the court granted the certificate of appeal ability and point was made by the state court and concluding that the true error was harmless beyond a reasonable doubt in this case there was never such a finding by the state court that mr when it was a direct order and a better there's never been an explicit finding that he was a direct  abet or if we look at the findings by the district court in this case the court basically stated that mr wind had a mop handle which was not the murder weapon the murder weapon according to the findings that are in the district court decision was a baseball bat mr when  twelve to fifteen people that were there one witness said he was on top of a car so he was certainly at least ten feet away fifteen feet away from the altercation that turned into being the fatal of the season which would have substantially undermined a finding that he was the principal certainly undermine finding that he was a principal i believe it's basically conclusive at this point that he was not the principal the only question is whether or not he could have been found hopeful as an aider and abettor she the only one that went to trial yes your honor but the case it's been staler cold for approximately eight years there was a tension there was a possible identification which we sought to challenge in the heaviest read but for whatever reason law enforcement didn't even arrest mr went until about eight years later in two thousand and nine and then the case i believe went to trial around two hundred and one two thousand and eleven however that was an eight year period where there was no i rest and there was no it intends to indicate who the other suspects could have been but the witnesses did indicate that there was anywhere from twelve to fifteen people originally there was a group of four that originally instigated the altercation there's no indication whether mr went was one of that group of four or was he one of those twelve or fifteen other people what was his role and what was his participation he certainly was not the actual killer basically on the evidence as now been on prattled at this stage of the matter however was he a director in a better if you listen to that one witness who was up on top of a car with a with a mop handle that would not have made him a direct in a better he didn't hold the victim down he didn't do anything to assist so that all we have to determine that the state the state court reasonably could conclude that the error was harmless beyond a reasonable doubt we don't necessarily have to reach that conclusion interest effect on the decision in this case and i believe it did have a substantial effect isn't just some minor technicality this is whether or not the jury all twelve of those jurors could have you know honestly found beyond a reasonable doubt that this t indicated he wasn't there on thanksgiving and so his presence there is one issue whether or not he directly aided and abetted the homicide as we've indicated in previous briefings we don't believe the evidence was substantial in that regard and what about the admission of kicking so there was an admission but he said that it was a different event and it wasn't on thanksgiving and it's inconsistent with his alibi so whether he was there or whether he was not really though at this point in time the question is if he was just merely an aider and abettor and he was found guilty based on the natural probable consequences very as not a direct later in a better but as an indirect aider and abettor then that would have been harmless harmful error and that error would have been substantial and it would've been interest because the prosecutor told the jury if there that's enough and how the other jurors reached their decision that under the rays decision was in the brown decision was why the court found that there was not harmless beyond a reasonable doubt because the even one of those jurors if they found that he spoke up under the natural probable consequence that would have been enough to find him culpable for st degree murder and that would have been enough to get to the special circumstance and the court said the special circumstance did not have the premeditated deliberate language in there and the court the other  they have please the court daniel rogers who responded let me begin with with ray as a jumping off point for the analysis because counsel is correct that another criminal disport did conclude that the for them willful is defined as the intent to kill so we have the special circumstance finding that required the unanimous jury determination that the defendant acted with the intent to kill so one rd of the way there with premeditation and deliberation now deliberately is carefully weighing the considerations for and against premeditation is deciding to kill before the eyes so if we go beyond just the special circumstance finding of the intent to kill and look at the surrounding facts and circumstances in the case i think we can determine that the jury which had already found that the defendant was acting with the intent to kill challenge reinforcements arrive those reinforcements including the defendant are armed they wait for the victims outside of location on a prearranged signal that a whistle in this case may attack  at least two witnesses see the defendant with the mop handle swinging at people he's on the car while tape is on the ground near a car i don't know that this record necessarily establishes conclusively a particular distance i think i heard the figure fifty feet tossed out i don't know where that comes from certainly i think based on the evidence that was presented to the jury the jury could conclude that the defendant is on the car warding that might be given to take a while his cohorts take care of game business and basically get it out on the ground near a car i think that's the state of the evidence what is not necessarily accurate in that harrington versus richter tells us that when we have a summary denial denial with no state we have to imagine all the irrational things that the court could have been probable consequences theory coupled with the other facts and circumstances in the case with the laying in wait the arming of the reinforcing the gang culture i mean repeatedly during his police interviews that he doesn't know what happens when you take them bers attack victims with weapons does it automatically presume however with the gang circumstance that there is intent to kill is it automatically presumed yes i mean i think because we don't know who struck the blow in this case well i think the instruction that was given required the jury to find that the defendant intended to kill so i think i don't know that i would call it a presumption necessarily but i think based on that we have to conclude that the jury followed the instructions that they were given and made the requisite unanimous finding that the defendant acted with the intent to get whether he was the actual killer or not he intended that killing occur i mean that's the finding that the jury made it's it's what we're left with or that's what we that's one interpretation of what we might find ok i don't  i think it's the most certainly the most logical on the most consistent with the evidence that was presented the other thing i would note is that the jury here was presented with essentially two car all of that the defense says he wasn't there at all the defense is that he's celebrating thanksgiving with frank hahn and cynthia that when he was talking to the police he was confused  about which fights he was talking about but he was actually describing a different fight the jury necessarily rejected that version of events when they found him guilty i mean they obviously in order to return the verdicts they did have to conclude that he was present deliberation the prosecutor present of the national public consequences there is an alternative when one looks at the argument first degree murder is a direct perpetrator is argued st done the prosecutor says if you don't think that's what happened then we get to direct aiding and abetting and then if you don't think that's what happened there's this national public consequences theory now as judge graber pointed out yes the prosecutor  argued to the jury that they didn't have to be unanimous on which theory they chose but again that's that's prior to the verdict that's that's a potentiality once they decide the and brown mr martinez actually testified that mr brown was the actual perpetrator and the actual shooter rather than an aider and abettor and he was when there was actually evidence that mr martinez was actually the gunman and actually the shooter and the jury was given a theory that he was the direction or as mr martinez that testified to the jury was given an option of finding mr brown with a direct order in a better and they were also given the option to find mr brown guilty under the natural probable consequence theory the court found it jury found the defendant guilty and they found a special circumstance to be true the court found that the two error was not harmless beyond a reasonable doubt in part because the credibility of mr martinez and significantly because of the way the