good morning your owners may please the court my name is victor cha it is and i represent the appellant in this matter larry banks is court knows this case involves a instruction eleven ninety one prior prior to permitting the jury to hear the evidence of the one nine hundred seventy one sexual assault the court instructed the jury that it could only it can only consider the evidence if it were if the people proved by propounder and some of the evidence that the defendant did in fact commit the uncharged offense about which it was going to hear the court did explain the difference between the preponderance standard versus the beyond a reasonable doubt standard and it and it told a jury that it was to disregard this evidence if it was not persuaded by preponderance of the evidence that mr banks had committed the nine hundred seventy one assault now any the court and i think this is really the heart of the matter further instructed that if it accepted that the prior sexual eighty one had been committed by mr banks by by a standard of propounder and of the evidence then it could draw the conclusion that he was predisposed or inclined to commit sexual offenses and based on that that it could conclude that he was likely to commit a sexual  offense resulting in the murders such as that charged in in the trial now this instruction was given prior to the testimony concerning the one nine hundred seventy one assault and it was also given just prior to closing argument and as as the paddle in the government's the people's theory during the commission of a felony which was an attempted rape the one nine hundred seventy one testimony was testimony that subpoena so the problem with this instruction is that given the context of what what was going on here the instruction  violated mr banks due process rights because it essentially told the jury that based on evidence proved by a preponderance of the evidence it could conclude that mr bangs was likely to commit a murder and the theory was felony murder why wouldn't that be relevant to the underlying felony the propensity well i'm attacking the instruction only the language of the instruction which i think went too far it's said that he was under these circumstance stances to tell the jury that he was likely to commit a murder preponderance of the evidence and i think that this calls into this violates his due process rights it calls into question the validity of the of the verdict did mr banks get a verdict based on i have to admit that it was the a good job of that was done of reconciling the difference between preponderance of the evidence and the beyond beyond a reasonable doubt standard so our position is that the wording of the jury instruction had the effect of of diluting in vitiated ing the proof beyond a reasonable doubt standard and we think for that reason we we cannot have faith that mr banks was was convicted by pro beyond a reasonable doubt that it and this is particularly given the context of a brutal violent murder and a brutal violent sexual assault which was the the the un charged prior sexual offense i'd like to reserve some time for rebuttal yes thank you good morning may please the court just in rightly on behalf of the warden even if we set aside the lack of clearly established supreme court precedent on the issue on the admission of allegedly irrelevant or prejudice prejudicial evidence and we set aside the state courts interpretation that no reasonable juror would have interpreted the language in this instruction in an impermissible way appellant is also incorrect that the prior crime evidence was completely irrelevant to the killing remember in california feeling felony murder only requires intent to commit the underlying felony and then resulting death here the evidence  and the argument by the prosecutor only pointed toward one defendant one perpetrator and the person who committed the sexual assault also committed t killing that was the evidence in the argument here the jury could use the prior crimes evidence to decide that oh appellant was the person who committed the sexual assault and then that person killed the victim  and even if that is an improper purpose so we're four times removed from the argument it was harmless in any event because we would have to assume on our path or relief that the jury did the absolute most irrational thing and use sexual assault evidence where the trial court specifically instructed them to use the prior crimes evidence to find that he had the propensity to commit sexual assault and then make the logical leap into over sexual assault or is must also be murderers if that is completely irrational then we must presume the jury did not do the most completely irrational thing i love dance or any other questions well as essential argument as instruction change the burden of proof which response to the burden of proof argument is different than the ones presented to the state court and the district court it toward the top of it says defendant second the first full paragraph defendant states that he would not be challenging that instruction were it not for the underlying language in the passage quoted above not only did the  evidence can only be used for sex offense charge crimes and not murder crimes he didn't speak at all about reasonable doubt but i will say that the reasonable doubt instruction was a misstatement to be sure if that's actually what the trial court said and we didn't get to test this evidence on collateral review for example or find out what the trial court actually said but if we assume that the record is correct in that the trial court spoke the double negative then california presumes that the jurors follow the written instructions which were correct and that double negative came after a very specific  explanation of what reasonable doubt was and that they were to find i'm sorry they were to acquit the defendant if they had a reasonable doubt and then immediately the trial court said that means you must not find him not guilty obviously that's ridiculous and again we don't and then i saw in that the case was argued that way and closing arguments either no the i believe the prosecutor brought up reasonable doubt and explained reasonable doubt as the did the defendant a defense attorney mitt just to clarify it it is not the appellant's position that the evidence of the prior non charged crime was irrelevant it's our position that there was a structure or that the defect in the jury instruction was structural that it was that it's not subject to harmless error review and i think this is particularly so given the context that the type of crime we have misspoke however he did say that to the jury and what the jury did with that we're not able to tell so how do you deal with the presumption that the written instructions controlling the written instructions were accurate the i really don't have an answer to that frankly i do want to say that i don't believe that we have raised a different argument from that which was presented to the court of appeals and the district court i think that it is taken in a different direction that is true but the argument that was made before the court of appeals and in the district court is in my brief it's mentioned  page twenty it is the court certified the question of whether the propensity instruction violated due process and this is where the question took us because i think that that is how it violated due process it vitiated the lower the standard of proof from beyond a reasonable doubt to a preponderance of the evidence and you were you