years experience in the present police department he knows the neighborhood it's a low income residential neighborhood these fellows are on street not just driving through and he thinks that on the totality of the circumstances those people could have been interpreted as you know possibly a turn leading up to a drive by the next thing that happens is that your client and his and his associates you know go for leather and start firing and  premeditation and attempted murder i think not for this reason and i think your point is an interesting one in that certainly had the fellows on the street seen window avoid unison florence's as well live but the issue here and this is why i started with malice because i think what's most significant is whether the date evidence and here we're talking inferential chains of reasoning is the prosecutor's burden at all times to prove that malice exists beyond a reasonable doubt here the only information that the jury had from which to construct a story about how this could have happened  used testimony that could have looked like a drive by to people on the street and given the fact that that possibility would if accepted by the jury here it is from the mere fact that the turn could have been interpreted as a predicate to a drive by shooting that as a matter of law raises the reasonable doubt that the prosecution then must know is that what we have to find i don't think i can say as a matter of law but when we are looking under jacks and whether the element has been  reasonable doubt and the prosecution is relying on intrinsics from the circumstances to generate that element we have to consider the entire context and expect when exactly the question i asked you earlier if if that so can't we can look to the fact that your client drew and fired for if you got to remember that the car was at the time that my client drew and fired twenty feet away from him with the headlights directly on him so if indeed this is a rival gang the car that window is going to go down and that gun is going to come out there we very quickly if he does not run fire first no question that this happened in very rapidly probably extremely rapidly within seconds within less than a minute and when he fired the headlights were no longer on him where they are because as i understood the trajectory evidence one of the bullets struck the right front passenger pos it was at that point they needed to back up and reverse course so they could complete the turn and it was before they pulled into reverse that the shooting took place ok so it was directly when mr cooper was chasing the car which means have it all in the absence of record i mean they say the same thing we pulled around when our headlights were directly on the guys they reached for their waistbands we all instantly ducks before the shots were even fired no one's thought that it was in fact mr cooper who fire but certainly under jackson i'm more than happy to concede that because he was identified as being out in front with the gun pointed that we conclude that he fired those shots but there is no malice if the defendant acted under the belief that he was about to be fired on and while evidence to support that conclusion was before the jury there was no other explanation when a jury is trying to influential reason about intent as the state cases tell us there are several types of evidence they look for one is planning one is motive these are broad categories and the other is the manner of the killing motive i think actually narrow of a word what the jury wants to know and what we and thinking about the logical chains of reasoning involved want to know is why did this happen what was going on that led to this sometimes the answer is one which provides a motive for the charge shooting and for that reason but we have to find the right that the mere act of making that would give rise to a reasonable fear on and on reasonable  soon after passing them turning around and heading back toward their position i'm sure that we've all read a lot of transcripts of the shooting cases and it is a very familiar scenario and again the burden of proof weapon and was able probably to start opening fire as soon as he wanted to so that shows planning it may not show malice in the old fashioned se and the mens rea element and arming oneself and going out into public may indicate a very generalized intent to be prepared for any violence which might be follow one but that is not specifically linked to the act all of the cases in california and all of this court case law on california cases look to evidence of being armed as one factor supporting premeditation only when the arming happened during the course passengers would have been you know in some danger from any shot directly forward toward the car but in just guessing the rationality or the reasonableness of the court of appeals decision what i want to point out is that on this other issue they credit the mistaken drive by testimony they say it would be reasonable for the jury to infer here that the defendant did think this was a drive by and that's why he aimed at this one position but then he chose that came along that i would say is speculation along with a list of other possible scenarios that we could make up to explain why this might have happened only one of the possible  with the fact that your client didn't run away when the officers yelled police three times and instead one here behind a tree and then one of his confederates i guess hung around the corner of the house as if lying in  continue firing if the occupants of the car got out well again i think this is one of those situations where we're called upon to look at the distinction between a weasel and inference and speculation there are many reasons that one could wait to see if the car went away to make sure that you were safe to do to get information about who it was but it could also be consistent with lying in wait to finish the job consistent with but nothing to support that inference compared to any of the others and also i think it's in just a few days was a continuation of gunfire right at that point the officers then returned fire but then they were fired on again that's right and the second i think it is important that the  attempted murder charge here really depends on those first shots that included the one that broke the windshield because the second you're saying that the jury couldn't in its consideration of all the evidence consider your client's conduct in not running away like the other ones there is continuing perhaps to engage in a running well there is no evidence at all of where that second round of gunfire came from whose position it might have been certainly congress after the fact can be relevant and in other cases it again i submit that in this case nothing about the conduct after the fact supports the inference that has been made here  e i felt was a primary aggressor here he carried as far as going to premeditation and the liberation he had a loaded firearm carried on his person in his waistband where it was readily accessible when he drew the firearm out as the state health court noted there was no hesitation he aimed it at the officers he also took what i would characterize as the shooter stance you can just draw with one hand that he took the gun out and put it second and on and i don't have a picture of the vehicle  to reporters transcript which i believe that those pages are included in the excerpts of record one bullet penetrated the front windshield hit the shoulder harness for the right front passenger seat belt and lodged in the right door frame another bullet was later discovered on the left rear floor board and with the fifth district court of appeal found was that as far as that second bullet was found on the floorboard we don't know if that was in the first volley of shots or the second volley of shots however i there was no evidence before the jury as far as that account was a gang member that had been a victim of a drive by shooting that this was an area known for drive by shootings that appellate had any reason to believe that he would be subject to drive by shootings was really a test for the record as to what the passenger window being down an arm being extended out of the passenger window anything being exhibited from the passenger window as far as the standard again it it's not whether any reasonable trier of fact could find beyond a reasonable doubt the elements of the crime were met and that would be premeditation deliberation and from the actions that we have the no hesitancy in firing the placing of the shots that they hit the passenger side of the vehicle not one but two shot and then also after the shots were fired and when the officers identify themselves as police officers multiple times the defend it takes up a position where he goes by a tree which could be as  one of the things that concerns me as a matter of stuff that of criminal law in california as this case does appear to be an extension of sort of the more typical premeditation case that i mean all the cases that i looked at w murder cases where based upon what happened at the crime scene the jury was allowed to infer that the defendant must have been gauged in acts of premeditation even if it occurred in a relatively short period of time i'm having a hard time making that intellectual leap because ms kerr points out this all happened very rapidly and we're sort of searching for a motive or reason why that the shooting to prove premeditation in mccain you're trying to do it i guess inferentially from the fact that these guys are packing a weapon that they go for them quickly seemingly without much provocation and then immediately start shooting and maybe that's enough i mean the california case of certainly say that the jury can find premeditation in a very quick time frame right well they would have had the opportunity he obviously had the opportunity to reflect he had a gun it was concealed under  so the vehicle passed a subject that we're walking on the street and in that case it overshot the place where it was going to turn so what the vehicle did was pulled moved to the right and then the driver  it to the right and then far to the lack of that in the process of being about to back up when the guns were drawn after the lights flashed across the group at that point the group had already stop and was watching the vehicle be lifting up the shirt taking out if that's what it includes watching the vehicle with you know the shirt taking out the gun pointed at the vehicle putting both hands on it and then firing the shots and the shots weren't just wild random shots they were beforehand or the way i was taken before the shots were fired and so here he had the opportunity for reflection at to think about his actions is that what it the fifa court of appeal again their decision is not objectionably and reasonable what they did was they looked at the argument that was raised but they also commented on the specific intent to kill and malice that is the specific intent to kill form specific intent to kill and what would negate malice would be the imperfect self defense theory and what counsel argued on appeal was that there is no way that reasonable fire fact that find that this imperfect self defense and the fifth district court of appeal look at that and they said well first of all based for all the reasons that we had before that given the placement of the shot they just before the previous argument that the manner of killing the planning activity that that shows that we do have specific intent to kill and then as far as what their argument boils down to is they're saying that they couldn't be anything but a perfect self defense in this case and there wasn't anything really for the jury to just support that and so that's why they rejected it but the fifth district still applied jackson v virginia they looked at the absolute most favorable to the finding below and they they found that a that the act was premeditated with intent to kill well when the conviction comes up on appeal the issue is not whether there were other generally the issues not because other there could be other explanations element and what the fifth district found is based on the average in the record there was even enough to support that the judge gave the instructions they want to ban anything to and not to support that finding and with intent to kill and given that was given yes your honor and what we have here are events that unfolded so rapidly that i think the you cannot rationally infer from the rapidity of the the district court of appeals conclusion under california law that the evidence was sufficient and declare that that legal conclusion was objectively and reasonable in order to happened the fact that it was an automatic reaction to what the car did whether or not to jury or we in evaluating this are persuaded about the strength of an imperfect self defense theory i think that it does not support a rational conclusion that there was premeditation as opposed to an automatic response which is the end premeditation there is also i think josh hogg was correct in his question indicating that to be a rational inference to think that there was that planned in advance just shoot any car that came along which really is the only logical alternative to that there's no doubt in my mind or in any of our minds that the taken under submission and that finishes our calendar for the day and we are adjourn