murder theory it has to be categorized as an inherently dangerous felony such as burglary arson rape robbery me exemption of narcotics for sale is not characterized by the state of california as an inherently dangerous one therefore it is legally impossible for the felony murder theory based on possession of a cause for sale to support a conviction my understanding state doesn't there is a legal presumption that the jury follows the instructions of the judge and in this case even though it's legally impermissible to convict mr reed isn't the felony murder theory there was evidence presented to the jury that they could have eventually convicted of first degree murder as a but the thing is before you get to the first degree murder you have to get to the second degree murder and if even one member of the jury used the felony murder theory to establish ma process works in the state of california is that first a jury has to find second degree murder they have to find something to establish malice to give them second degree murder when you're getting into the the thinking of the jurors well premeditation and deliberation first degree murder two separate independent concepts into legally finding a fee meditation in deliberation for first degree murder thing i think you posed a situation of of a defendant who was under the influence such that he could not form the requisite malice or act with the requisite malice but may have planned the murder in advance can you explain how that works with the two concepts you say that are separate and how how it could have applied here so that your client might have fallen into the category of one but not the other but for the felony murder rule  yes i'm trying to figure out it is that because the malice piece in your theory is missing from your client because they might have replaced malice with a feller found malice based on the felony murder rule first of all the instruction  ht but in other words in order to find in order to find first degree under that instruction they have to have found intention to kill and they have to found that that intention to kill was premeditated and deliberate once murder and i think there's a question about whether or not there's any evidence that the jury could rely on to trigger that instruction but i think the overriding point is that having found first degree murder we know that the jury found instruction tells you anything about which degree of murder it goes to well that will kill you it's murder ok but but the first degree murder instruction tells you what you have to find a first degree murder and since they found first to be murder they must have found the things that the instruction required them to find degree felony murder and then you would not have to and all of the elements of the set forth and the ordinary first degree murder case that's right so it's true that yes you do have to find where does it say you may find guilty of first degree murder it only says if you find felony murder you may find him guilty of murder yes now the question is whether the jury from that might if the jury had come back with the second degree murder conviction and you couldn't make the argument you're making today and you could say it's harmless error could you if the jury came out with a second degree murder verdict with second degree murder conviction you then i think i know i would have to address squarely about what sort of ever it might or might not be to have instructions that you have two theories and the only reason you're here with this argument is the first degree instruction has that explicit language expressed malice of forethought and premeditation and so forth right which you say demonstrates the jury must have jumped over the flesh in that felony murder might otherwise to me reach a different reason yesterday for the now let me take your hypothetical which had been posed and in a felon's briefs situation where a jury could have reached a verdict or can you speak in the hypothetical as to why that could or could not happen well if on the california law in the penal code section one eighty eight if the defendant intends to kill and premeditated certainly is there but under the statute a finding of intent to kill is a finding of malice nothing under the statute nothing more needs to be found to find malice if you find th that's not to say that under california law findings on additional facts might serve to negate that finding and the cases that the appellant cites basically are cases i talk about what happens in a situation where even if the defendant has premeditated deliberate intent to kill that is that qualifies as a as a showing for malice even if the defendant has those has has that mental state if there is provocation sufficient to excite the passions of a reasonable person or if there isn't perfect self defense then malice might be negated but that doesn't mean that the finding wouldn't otherwise suffice to make the malice finding so what you have here i think the monstrously is a jury found premeditated deliberate intent to kill that is sufficient on the one eighty eight to show malice and nothing more needs to be shown the question might become well is there anything in the record that we can deduce about whether the jury might have negated that malice or made findings sufficient to negate the mouse they had instructions on perfect and imperfect self defense that would have negated the malice they rejected those defense those instructions because  accepted those instructions they would have had to have returned an acquittal if they found perfect self defense or under the instructions they would have had to found manslaughter if they found him perfect on reasonable self defense the state court said and there's nothing in the instructions that would allow them to find a provocation still i think you can you know you can demonstrate that the finding of premeditation and deliberation of an intent to kill our backs all that's required to show malice  jury found the time first degree any other instructions would have only pertain to their ability to find lesser degrees and you know that they didn't get there because they found the first degree one last point that i want to make although i think logically speaking it's a preliminary point and that is that it's not at all so that if you have two theories and one of them might not be supported by the evidence that it's unconstitutional error in the first place and  united states kate i case i cited in my twenty a j letter supreme court said that well though there might be a question if you have two theories one of which would have resulted in a conviction that would have been unconstitutional under a specific provision of the constitution like the full faith and credit clause clause or the treason clause if you have two theories and one of the theories is invalid only because it's an insufficiency of evidence to support there's not a due process violation and that conviction can can't can't can't stand that's what you have here you have a situation where even assuming all of these interpretations of the of the record of the evidence might be sol the that you can count on the jury not to return that finding unless there's evidence to support it so there's two separate reasons why this claims that it was one is it's not the type of two theory claim that results in a due process violation and second is it can be demonstrated that the finding of first degree mooted out everything else the state didn't ask for a felony murder instruction did it no not this not really just sufficiency of evidence nobody was pursuing the theory but the judge happened to read form instruction that covered it that the evidence was insufficient to make evidence oh no i think that i think that's i think that's what the argument is the argument is that this is why is the instruction wrong it's a facially valid a statement of california law on on felony murder they weren't told that but there is no way i don't think that the jury could have used the instruction in this light that this is why griffin i think that was not a due process violation there's no way the jury could have found those other evidence because the death they were they were subsequent i don't think i don't think you could i don't think the jury could reasonably deduce that it was if there was any connection between those feet between those two chronic connection to this temporal it's the word is that when those when those crimes were committed i think that would be speculation on the jury's part but even if even if it weren't then i think they would just go back to square one and swear i wanted this they found first degree premeditated to live with intent to kill so we know an overstatement of the matter to show them that's not correct let me read got the california supreme court said and people versus a day now which was cited in the brief from cal search seven zero three pages seven twenty two seven twenty three cases one is yates versus united states which was cited in the palace of english which creates a situation where there's a connection and one of the possible bases of convention was legally an adequate that's exactly the case here the instruction on felony murder was illegal the jury was instructed on a nonexistent crime that was legally inadequate and then it compares that