instruction to fifty point zero one and two fifty point one clearly allow the jury to be confused as this court ruled and that for a slightly different reason and they were indicating that it should be held as the prior crime should be proved beyond a reasonable doubt but i believe that in this fairly presented and  struck down those instructions as given in any case when they're given in tandem yes so that the sort of that that creates for say violation of what those instructions are given in tandem or that as applied problems we have to look at all of the instructions that were given in the course of the trial and all of the arguments i believe that it's plain error but i believe even if you look at everything else it still falls in violation of gibson well begs the question though doesn't it i mean if error apply in an epic case or aren't we are or does that somehow inform our inquiry as to whether or not the california courts were objectively unreasonable in ruling that there was nothing wrong with the instruction there may be a difference but i think that under these circumstances with the instructions given in exactly the way that gibson criticized that  the standard should be the same whether it's well except that on federal hate vs review we have to determine whether the claim is properly preserved and presented to us and if we conclude that it  because it wasn't litigated for example in the district court do we have the authority to reach down and nonetheless decide well i believe that was essentially fairly presented because it was  believe if you read the record that it was adequately presented at the time fairly presented throughout that this was  improper the way it was presented counsel well here's to ben that the instructions were in error because it would be a violation of due process to require litigated and the issue is whether it was fairly presented as a violation and under these circumstances when we're talking about the same instructions and the effect i believe the issue was fairly presented to the state and to the federal courts my lawyer position gibson came  the fact that it's on a somewhat subtle difference as far as whether the prior have to be proved beyond a reasonable doubt or the case in chief had to be proved beyond a reasonable doubt i think it's close enough that the issue was fairly presented as it came up that's our position and i'm happy to answer any other questions that you have at this point otherwise i'd like to reserve a minute concert with the body well thank you  mechanism and death is a totally separate and different type of review with a very highly deferential standard of review  california court of appeal the california supreme court and therefore it is an exhausted and there are cases that say that the the federal court will not assume that the state courts are clair t that somewhere in there is a claim that can come up later on in federal court and again this particular claim was never raised before the  not because it's not it's not the same claim but also in this particular case appellant never objected to the instruction as far as i can speak from my recollection  work what's california's position and give them california's position i'm guessing and is that gibson well my position i have seen is that gibson is different from this particular case and california from my no no your honor no not at all again you will you would have to look at the prejudice it's in the particular thing of prejudice is a different question prejudiced is a different question the question is whether whether the giving of those two instructions whether we have to look at sort of a whole set of instructions that were given or whether the fact the post to instructions have been given together in the thing case violates the constitution would have to look at all the instructions your honor in fact that's always been the standard in every single case you would have to always look at all the understood all the instructions that were actually given in fact the united states supreme court has repeatedly said that you look at all the instructions to look at the charge as a whole and and see what particular how what type of prejudice could have arisen fall within any of the exceptions of lackawanna the the very specific gideon exception and the fairly rare and vague exception will fall exception he doesn't fall every psychological every psychologist does a present mental status evaluation so that the fan that knows is the terminal to see whether he understands time place manner fact the thing he's that's my best my aren't that's my feeling argue when the argument stronger my my initial argument is that lack of want is a complete and total bar and if you don't if you don't accept that then and you want to and the trial record as a whole but that's a problem with the the two instruction in the ambiguity in which standard of proof the jury is supposed to apply and if if i'm reading judge wardlaw as opinion correctly and gives the that panel concluded that because the trial court made no effort to harmonize two different cases by explaining to the jury what to do once they found by a preponderance of the evidence that the prior crime had occurred futurist i believe that there would be no confusion here because of the arguments made by counsel in this particular case and if you look at the record and i understand the court has the record you'll see how counsel has argued that reasonable doubt to have to have committed a prior i think sex crime that's absolutely correct your honor that in fact he was as far as the eleven zero eight evidence the court allowed only one prior to be used beyond a reasonable doubt the problem is that the jury was given this confusing standard of preponderance the jury could have been given i suppose the have become question of congress goes to what in this case the question of preponderance goes to the prior and gibson held that it becomes confusing and ok but in this case he does know quite that whether or not he committed the the prior right as been already been shown beyond a reasonable doubt because he has a conviction and i'm just and i believe my understanding was that in the case we just had just a month ago we had we had an allegation of prior higher bad conduct but it was never there was never a conviction of gibson was that they were concerned that the jury might find a prior would find a prior by a preponderance of the evidence and then use that as evidence of zack's of his current acts and so the problem is whether is whether you've found is what you found the propensity by on on the basis of x for which there is only preponderance of the evidence but not proof beyond a reasonable doubt that's not your problem he's got your guy's already been found guilty of those acts by a by a reasonable doubt i disagree i think to do with the problem of the jury finding the case for which he's on trial for reasonable doubt and that's why those two instructions need to be clarified and councils right they have been now that instruction is no longer given