on the prosecutorial misconduct claim and there we demonstrate that the prosecutor used his cross examination of the defense mental state expert to hammer home the experts inability to a pine on the ultimate issue which was whether mr muzzles p t s d and alcohol intake negated his specific intent to threaten the victim's going to statement from the california this was prosecutorial misconduct we do and in fact not only prosecutorial misconduct but deliberate misconduct in outright defiance of the trial court's several admonitions and the problem here was that the california law precluded the expert from opining on this ultimate issue of whether or not mr muzzles did or did not have specific intent what the prosecutor did over the course of eighteen transcript pages was to ask again and again and again whether the whether the expert could opine on that specific intent and just a couple of questions that the prosecutor asked you have no way of knowing defendant state of mind you are not able to give an opinion on defendant's state of mind how does p t s d translate to something being beyond one's control and all these questions were questions that the expert couldn't answer under california law these questions and others elicited sixteen separate objections from defense counsel a side bar and four separate admonitions from the trial court again and again the prosecutor was told stop stepping over the line and he appeal clearly saw that there was deliberate misconduct here and saw the problem where the court of appeal failed however was to find that the error was harmless and that's the issue that's really before this court has the warden shown that the error was harmless under breakfast abramson and they can't and there's a there's many many reasons for that first of all this testimony went to the core of mr muzzles to fence his main defense was that he did not have the specific intent to to threaten these people because of the p t s d the feelings of hyper arousal the lack of self control combined with the alcohol content and we kno evidence was meaningful because the court the trial court itself found that it was meaningful and sufficient to go to the jury we also know that the prosecutor exploited his misconduct no evidence before the jury on the ultimate question of whether mr muzzles had the specific intent so there's an expert but he's not saying that mr muscles didn't have the specific intent and that's the that's the theme that the prosecutor hammered home again and again and again and where we see this come up because again in his closing statements were he says we haven't seen evidence that actually shows the nexus between the p t s d and the specific intent there has been no evidence that mr muzzles was suffering from a p t s b d flashback there is been no statement indicating that mr mansell's was reliving past abuse but these were all things that went to the ultimate this is a situation in which which defense counsel objected strenuously on sixteen separate occasions after the twelfth objection he asked for an attack attained a side bar at the fifteenth objection the court admonished the prosecutor over a string of questions four separate times he also admonish the jury to disregard the prosecutor's last question and at the end of the experts testimony the proper the defense counsel moved from this trial so we're seeing a concerted effort by this defense counsel to preserve this issue for review which the rule in california as to whether what at what point does it become a procedural bar what point is there sufficient admonition i think that's a good question your honor the general rule is that you have to object to the misconduct and request an admission now of course here the rule that was applied was the defense counsel didn't ask for additional admonition so he had received four separate admonitions of the prosecutor in front of the  the the rule does talk about admonitions to the jury and not the lawyer and the and the jury was admonished to disregard the prosecutor's last question  the california court of appeal seems to suggest that after moving for a mistrial and that being denied that the trial counsel should have requested another admonition but it was at that exact moment that the trial court stated on the record that it believed it had provided the not admonitions and that there was no harm no foul so in the heat of the moment i would say the defense counsel did more than enough to whatever the bar is is applied consistently and in california law and as i mean to go in when you cases they wander around a little bit as to how much of an m admonition is required what substantial compliance and so on you can you can respond to this but my close to time this procedural bar was applied in this situation where there had already been admonitions and objections and yet the court required one more to preserve preserve the issue so levy can i think really supports the proposition that m i don't really know what admonition the court could have given other then if the defense attorney wanted to preserve a claim of prosecutorial misconduct i think he should have said you know counsel should have asked the court you know a the jury to disregard the prosecutor's misconduct i think the reason that that didn't happen was that the objections that were sustained were adequate the court in this case and by the way i want to make it clear that we're not challenging the california court of appeals finding that there was improper questions asked nor are we challenging the finding that that was deliberate the court of appeal found that we're not going to challenge it i do think however under the ad does deferential standard of review the prejudice finding should be upheld and the reason for that instructed the jury before the evidence started and then again after the evidence was closed not to consider questions that were asked when junctions were sustained not to speculate about what the answers would have been given had the objection not been sustained the statements of counsel are not evidence and the prior argument judge was your mention that you can't unring the bell while in this case the bell never rang the expert got to say everything he was allowed to say under california not something i'm going to appeal so found portrays the words on my part but but the point is this judge was very solicitous about this issue because it had been discussed before before trial and in fact there are times when counsel didn't object when the judge looked at him said mr  asked and were not allowed to be answered i think it's because the sexual abuse that's alleged in this case that the defendant suffered obviously a horrible thing to go through was thirty years before this offense so that ended when he was about twelve as i recall and he was forty five at the time of this offense after the police came he made the statement now that i'm going to jail for the rest of my life i'm going to kill you all and i think that that showed a presence of mind and an awareness of what the situation was his criminal history you know the penal consequences of what he did i think that showed that he knew what he was doing he had been drinking and there was a voluntary intoxication defense that the jury could consider and rejected and it may have been the fact that there were two conflicting defenses or two separate defenses that were submitted to the jury maybe that was why the defense didn't prevail my experience juries like to have one solid consistent defense put to them and when you have these kind of alternative defenses you know it could have been p t s d and if it wasn't that he was too drunk to form the specific intent my experiences jury some particular care for that but i think i think that when you look at this record and you look at the questions that were asked where the objections were sustained and with the jury was repeatedly admonished don't consider questions where there were objections sustained don't speculate about what the answer would have been i think that the reason the defense failed this is not because of the questions it was because it was a defense that just didn't work in this the facts of this case and the strength of the evidence you know you had numerous eyewitnesses saying you know he knew where he was he knew what he was doing he had been drinking for sure and there's no doubting that one other thing i wanted to mention was in the opening brief there's these statements that the jury struggled with this case as evidenced by the fact that they asked to read that scene for questions and that's true like in many cases the jury did us read that scene for clarification but i want to make a point that they didn't ask questions about the specific intent and they didn't ask questions about the expert in this case the ju know this was a three strikes case i don't believe they are he completely did not correct yeah correct and the trial and the strike prior came afterwards i think after the jury was dismissed as i recall there was a court trial on that issue but judges are extremely careful  california not to let juries know that that it's a three strikes case so the questions that the jury asked during deliberations had to do with read backs of the stepdaughter that read back of her testimony because there were there were conflicts between what she said at the pulling their hearing what you said at trial that's common in a case you know domestic violence case i think she was fifteen at the time the defense of my memory is correct and they were discrepancies which defense counsel you know pointed out between are preliminary hearing testimony in a trial for us the money they asked to read backs about that they asked a question about the terrorist threat or the criminal threat statute but the question they asked had to do with the immediate prospect that it could be carried out not t specific intent that's required for that crime and i think that's an important distinction to make that although they may have been you know had questions about the case and the evidence it wasn't about that element they didn't ask to read back about the doctor's testimony they didn't ask for clarification about what his specific intent i mean yes or questions about other things under the at the standard the question is whether or not a fair minded jurors could have found in this case that there was no prejudice given instructions that were given and i think that when you look at what the superior court judge said when this trial motion was sub which i think is kind of interesting he said it hurt him more than her you know the spirit judge was there at the time he had the opportunity to kind of observe this going on and what the jury's reaction to it was and i think that that's a really interesting statement it hurt him more than her you see here to prosecut yes yeah i mean it didn't make the defense of bad at all and then you have the court of appeal saying there's no prejudice and then in federal court you have the magistrate judge and john selma so in terms of whether or not any fair minded jurors could have found that there was no prejudice in this case without you know i don't want to count them up and say that we should win because we have a total of six but there were four state court judges in two federal bench officers that there is no prejudice given instructions that were given in this case and given the state of the minutes so for those reasons would ask harm no foul here but the prosecution's questions didn't insert new evidence into the proceedings they pointed to the absence of evidence and the jury was never told that the expert was unable to reach that ultimate conclusion  under california law there's no reason that a jury hearing that look this guy can't tell you he doesn't have specific intent wouldn't just conclude well i guess there must be a specific intent that's the problem here they haven't seen evidence that actually rises to the level of showing an excess on e r six nineteen no evidence that there was a p t s d flashback these are all issues going directly to specific impact intent and on e r six i would say that they are impermissible questions your honor because they all go to the ultimate issue of whether the p t s d negated the intent the expert was not allowed to say at the moment he was making the threats mr muzzles was suffering from a p d flashback that was one step too far from where the expert was actually able to opine it was for the jury to put together the evidence of mr muzzles symptoms of hyper arousal with the  circumstantial evidence at the scene that he looked crazy that he looked it seemed like he had snapped and it seemed like he just wasn't there this and other testimony could have been put together to negate the evidence of specific intent which again was the prosecution's burden to prove beyond a reasonable doubt no i may be having trouble then with the scope of california wider standard the expert cannot testify to his own view of the ultimate question which is to the issue of specific intent that's that's my that's my belief i'm not sure you're right because pacific content is a legal conclusion suffering from an episode of flashback that sounds like a factual conclusion to conclude that the on the issue of specific intent there was not overwhelming evidence presented by the prosecution it didn't require that much for the defense to negate that showing and accordingly