good morning your honor is made please the court james g appearing for mr mills unknown to the attorney general is kyle gee that's how i practice but in this court i'm using the whole not i want to reserve two minutes  i also want to say it at the outset i recognize and these state habeas cases that there is definitely an issue of large rocks and steep hills and that the burden is not an easy one to  satisfy particularly since this is a case that was decided by the california supreme court but nonetheless i believe in this case and i'm asking the court to give it its very careful attention we've got this fellow who was definitely delusional based on mental illness he was on the run from some perceived threat from gangsters and said he'd fled to contra costa county in the middle of the night he  hears voices from radios he's got a psychiatrist to testifies that he was operating at the time at a psychotic level mr furstenberg who was on the train platform i think captures  pretty well he says his behavior his behavior was quote a little nuts and he had this belief that the people at the train station including the man that he shot were there to kill him they were these hit teams that were were after him and the fact of his mental illness was relevant first and less importantly really given his age to the issue of premeditation and deliberation so second degree murder with a gun he'd still be doing it effectively life without parole much more importantly it was relevant to the issue of imperfect self defense which under california law once the evidence is presented then it becomes the prosecution's burden beyond a reasonable russia in relation to malice to show that he did not act in imperfect self defense and into the middle of this they drop this conclusive presumption that the jury was to conclusively presume that the defendant was legally sane at the time these events occurred and the court it's not the claim of error but it's a relevant consideration the trial court refused to define for the jury what was meant by the words legally sane so that jury was left to decide for itself what those words meant and to borrow from the patterson case sane to a layman means rational sane to a layman means mentally sound and in patterson did it include legally do not include legally or conclusive but legally would at least potentially alert the jury that we're not talking about conventional sanity and you're just not  to take it as a legal im you're not to get into the the legal definition of sanity at this bifurcated stage because i might put it to you generally given that california has this situation what should the jury be instructed in this this is what the system sets up as a way of helping this bifurcation do you have some other way it should be handled well i think the way it should be handled is the way it's now being handled in california after mr mills decision is we do we just tell the jury these are the issues that you have to decide and we do not muddy the waters with this conclusive presumption they found as a matter of  state law that's not going to be part of our jurisprudence anymore but i do understand the court's the implication is that somehow a lay juror is going to look at legally saying and seen as being distinguishable concepts but the fact that potential exist and when we're talking about here are reasonable and you know how the jurors might reasonably interpret these things we're not talking about the only possible interpretation or even at least under other california or other other u s supreme court cases they do not treat reasonable likelihood as meaning substantial likelihood so there is some limit on how far this rule goes and just to look at the some of the things that the california supreme court did that we consider to be reasons that the opinion should not bind this court patterson was looking at  presumption as to mental state it deemed that indistinguishable as a practical matter from francis in in this case we had the words conclusive thrown into the mix on mental state which makes it even more compelling under paterson the california supreme court in our view misapplied francis when it relied too heavily on o ther instructions to cure the problem it applied the wrong standard of prejudice it relied on middleton which has no application to presumption cases if this was how the california supreme court described the significance of mental illness in this case his mental illness contributed to his on reasonable belief i consider that a unreasonable interpretation of the facts it was the source of this delusional belief that he was under mortal threat at the train station from virtually every man that he encountered there  and unless the court has further questions that really come to the end of my notes that i was going to draft one question for you that the california supreme court did talk about harmless error and that in analyzing state law not federal law correct correct the government or the state in this case does make a harmless error argument of some four thousand a asking him about that as well but from your position you point how would we review harmless error i wonder what standard well you'd have to review it under  we would not apply at the deference to that because the state court did not apply harmless error to the federal claim going to the state law quite correct if they if they you know under watson which is the california standard or the under the constitution of california  i believe it was all one of the cases we had that found that there'd been error in a presumption and state case they said that it was unreasonable to apply the watch and standard to a federal constitutional there are two conclusion that there was no reasonable likelihood that the jury in this case applied the challenge instruction in an unconstitutional manner was not objectively unreasonable for the following reasons the trial court gave twelve instructions that related to either murder or manslaughter specific intent the defendant's defense of imperfect self defense and those were in addition to this challenge instruction the entire case starting from the opening arguments through to the examination of the witnesses in the cross examination by the defense counsel all focused on the defendant's mental state that  argument where the defense attorney specifically argued the defendant's fear was totally unreasonable that's the very reason why he's not insane given this argument giving the prosecutors argument that the presumption of sanity was to be reserved for the following phase the prosecutor stated this is really important to remember for this stage of the proceeding this guilt  e that the defendant is presumed to be saying the end sanity issue will follow the trial court apparently also informed the jury before trial began that there was going to be a separate  and the reason i say apparently is because it looks like after the the verdict was rendered after the guilt phase the trial court said to the jury as i explained to you when we first got together there's a second phase to this which will be the insanity phase and we don't have the trial court's exact words because the jury for dinner was not included in the reporter's transcript in this case but given the fact that the prosecutor the trial court stated that after the verdict was rendered the prosecutor's comments in closing and the fact that at least two of the instructions including the challenge instruction both referred to the guilt phase of this trial this all this in addition to the fact that this jury was told that  defendant was to be presumed legally sane once the conclusion that this jury understood that the sanity issue was the second phase that they were not to get to that until they decided defendant's guilt and that the main issue that was presented at trial by both the prosecutor pretty much and the defense attorney was that the defendant's mental state affected his ability to decide whether he should be afraid under the imperfect self defense defense that he presented at trial if you see the term legally sufficient to distinguish this case from stark in patterson well that's a good starting point to distinguish it but as long as you bring up start starcom patterson there are at least two or three maybe even four other distinguishing factors between this case and both stark and patterson and patterson you had a defendant who first argued that his mental illness prevented him from performing the specific intent to commit murder as we stated in our brief the defendant here pretty much acknowledged that he had this specific intent to commit murder he was just arguing that he was unreasonably afraid for his life and that's why he shot at the victim patterson at both patterson and stark the defendants both claim they didn't have the specific intent in both of those cases i should say neither of those cases did the is there any evidence the trial court explained to the jury that there was a bifurcated proceeding and that the issue of sanity was to follow or that this was a legal sense that there was a definition that this was different than the conventional a sense definition of sane in paterson you also had a prosecutor who argued in closing not only that the jury should disregard the evidence of mental illness but that the evidence that was presented of mental illness on the defendant's part was irrelevant also have a jury in patterson when after they found the defendant guilty they went onto the sanity phase and they hung on the issue as to whether the defend was even sane at the time he committed the offense as far as stark you also have the fact that the trial court after the jury found the defendant guilty of first degree murder the trial court actually modified the verdict and found that there was insufficient evidence to support the prelim premeditation and deliberation so here you have none of these factors what you have is a defendant who admitted that he had the specific intent to commit murder  and by all accounts every instruction every argument cross examination direct examination the witnesses pointed to the fact that this jury should consider the defendant's mental illness in deciding whether he was guilty of manslaughter under an imperfect self defense theory as part of the defense argument or by versus the whether he was guilty of murder first or second degree murder under the prosecution's argument so based on the arguments  counsel based on the twelve instructions that were given to the jury in this case it's our position that the california supreme court's application of the stele boyd and middleton was not an unreasonable application of clearly established supreme court law list or any other questions i would submit i don't think so thank you very briefly she talked about what the prosecutor argue the trial i think it's significant the prosecutor really put his eggs in the basket of this instruction he didn't call any alien at trial my recollection of patterson was that the really the critical issue there was premeditation and deliberation and not intent to kill and the instruction in that case spoke of mental state which is a very broad concept that certainly covers everything that's relevant to mister mills this case and as far as the finding the subsequent finding that mr mills was legally sane under the california different definition of legal sanity that has no implications backward to what happened and the determination of guilt of this trial and i have to concede that mr mills definitely admitted that he was shooting that man and shooting him until he was no longer able to  but i don't recall him ever saying i using i tend to kill or anything else it was intent to make sure he was safe so i'll let the courthouse questions thank you very much for your time thank you