law that controls what the prosecutors did in this case arguing factually irreconcilable theories thanks of the same act to convict through different defendants of the an act that could have only been done by one person other case that's the case involving the gulf oil executive and the c p a who are actually the i r s agent who he was charged with bribing the i r s agent was not convicted and under in aiding and abetting theory client sentence because the other charges assault with a firearm could be vicarious liability but that particular charge under california law there's no vicarious liability it must be personal use by that person in connection with a specific crime charged against that person so in this case it was the charge of assault with a firearm against a specific individual cheryl bishop the manager of the restaurant and the specific incident described to be that  as you point out contrary authority why that is decision that's a recent decision so under delgado this court must undertake a independent fascial evaluation to determine whether the state court decision that we know occurred but we don't know what they were thinking was u because the defendant didn't know what had happened he did the trial of the second defendant occurred three years later my client was in prison during that time so when he found out about it his take this case was still pending he was able to add it to his petition and the district court ruled on it but in the meantime the case was stayed and he raised those matters and exhausted them before the california supreme court which issued postcard denials one word denial orders and that means your three reached the merits and we have to give them that was outside of the vision of anybody in the restaurant there's no actually no witness who testifies who that was so there are inferences that can be drawn from the very witnesses accounts when this is testimony not very significantly between the two trials not enough to change their prosecutor's theories and it's very good in ways that the prosecutor even did not accept like the hostess testified to something different than she te it in a different way so they are you to they urge the jury to accept a different on the procedural grounds and reversed it is spin sided and relied upon by many courts including this circuit but certainly i found even recent district court cases continuing to rely on it as the law that it is a violation of due process for prosecutors were but what you're saying is in addition to that the fairness of the trial is insufficient where the prosecution operates in bad faith whatever that is to say take the same facts to convict two different people that's correct and what your best cave's aside from the concurrence of justice judge clark whom i respect and admire what's your best case supreme court or ninth circuit the so called bad argue that either in the first case that one person was there alone and in the second case that two people were there or not and that factual pattern matches this case in the sense that the complaining defendant was tried first in both cases is evidence to show that both shot and watts used a gun against ms bishop but we both know the world knows there's only one person that did it and it's got to be either  prosecution taking a different theory in a subsequent trial does not violate due process that right factual different factual history with the very same facts you can put a different spin on it convict two people for exactly the same crime when everyone knows that they both couldn't be convicted by a crime yeah you're the one that's saying everyone knows what i don't agree with restricted to rescript of the current six and seven and tell me how how you can say that two people convicted could be convicted rivera crime well the testimony of the witnesses w prosecutor or a united states government that has the responsibility of fairness and justice why isn't george clark's position right there's something wrong here in america they should not happen it will serve them both aside and go back and try it over and find out which one is guilty of that particular crime why does not make sense and i assume this applies to states as well that's just what we're talking about an academic discussion as opposed to what is fair and what is not fair but the issue here is what is the controlling supreme court authority and our supreme court has now and a number of the circuit courts have found that there is no good process process violation and a prosecutor taking an inconsistent position in a subsequent trial whatever we think our general notions of fairness or what should be are are not perhaps found that there were bedrock principles to support its decision last or berger aggers files versus maryland bagley caldwell versus mississippi prohibiting the government from using unfair strategy to obtain a conviction urging the jury to draw false inference in argument is in permissible under the due process cause there's no need under the terry williams case for there to be a single case on can be looked upon to see whether there is controlling supreme court authority or nother point raised by my opponent and actually raised by your honour's repeatedly the issue of whether there is it has to be the same district attorney the same prosecutor that's not the case if that if there was an exception for that very different attorneys in the same office then the prosecution could just avoid being caught taking doing this gamesmanship by switching district attorneys thank you counsel your time has expired the case j argued will be submitted for decision