found they put him on fire charges filner well but ok let's go from the standpoint that i think all of this that i've done criminal law i know that when someone is found not guilty doesn't mean that they innocent it means that it wasn't proven beyond a reasonable doubt it's not the equivalent of a finding you know any finding by a jury twelve people have to agree on and all that they found you know if they find that just from the standpoint that that there's a saying that you you know you can't have a drive by without a driver and it was apparent that the evidence in this case was he she had  and to the jury that he made a statement to the police that he was the driver that he wasn't the passenger and if he wasn't the shooter then you have the person that survived the shooting  identify some associate are right and so there's a conflict there isn't really a conflict about whether he's there or in the oven and sort of the conflict about whether he was the driver or the passenger and under an aider and abettor theory there's also evidence that i think that he even gets in his statement to the police that has to do with the conduct of the vehicle and going in looking for this person and going to get a gun before and all of that so it's not even a shooting where you can claim that you were the driver and by surprise you had no idea that the passenger just pulls out a gun and decides to shoot someone i guess even if you you know you can show an error in the instruction how do you show that or what you know it seems to me that this case was so clearly in eighty nine about and there in how do you show that it was harmless there client is a drug dealer there of his priors they were told that gang members quite expert witness gang members protected their drugs for with violence and that the statement do you all have business around here was a a question basically an accusation that you're infiltrating our drug territory so the jury's given numerous possible grounds for what would be considered possible target offenses but none of which are genocide so the false are also motives to i mean that's why you know that's and i mean i think that i think i agree but i think that instruction even if properly given is i don't know who can understand that instruction in the first place but that's why i just really wonder why the jury would have been paid any attention to it when the attorneys are arguing you know it's clearly i tried by shooting and you've got a driver and you've got a passenger and it's a question of what it is that everyone argues aiding and abetting why you would even was definite testimony that the passenger held his arm out of the window and pointed right at the individual who testified that the victim who survived well they weren't sure whether whether your client was the driver that's talked about is the assault and the assault causes the death that is clear that the assault is a proper target crime i know that you're looking to strike is that there is no other crime floating around in this case there are lots of other crimes being discussed that would not support under crime that in enforcing you know drug foundries or you know drug selling boundry half a pint but how many pointing a gun at someone and shooting them it doesn't have it looks like you like a threat get out of our territory why ask the question if the shooter is then going to shoot it's equally possible that it comes as a complete surprise to the driver that the fact that the passenger actually should fly shoot he chased them away terrified them that is generally the way that these gang members patrolled their territory but i guess if someone had argued that i think you have i think you have a really strong argument why that wouldn't be harmless because then we wouldn't know why the person was killed but no one argued something like that so if the jury was found with the prosecutor primarily arguing the case they would have found him guilty of first degree murder they would have found him that he had personal use of a firearm that's very significant that they didn't positive that kind of doesn't really go to the accident theory there does that you know that's true but you have an inconsistent verdict you have second degree murder of the individual who was actually killed and again  on the victims and how can the jury possibly have found that if you're not the shooter you have to be the shooter to inflict bodily injury you have to go back but you still can find that it was premeditated which i think they morning your honor one prudent deputy attorney general on behalf of the warden the sole issue before the court is whether the california court of appeals decision that the natural improbable consequences of instruction which was erroneous only extremely limited because the burden of demonstrating and erroneous jury instruction was so presidential why did you even get that instruction when no one even argues that fairy of the case and i mean it's it is an impossible instruction to understand for the most part even if correctly given and then no one argues that i mean how do we really know what counsel says is in terms of you know that the verdicts are a little you know the  if you know that it really it's hard to believe why it would be a second degree if on the one hand you on the on the attempted murder it was premeditated and then on the other one we find second because first  premeditated right yes so you know they are there in our little hard to reconcile their i would admit that it is hard to reconcile all those very reasonable explanation is that  jury gave the defendant usually benefit of the doubt that he was actually the shooter and given the second degree murder well but even if he if i think my point that i you can't have a drive by without a driver and now you know one person's got to shoot one person is going to drive that's you know that's almost the elements of this you know technically the driver can shoot too but that's not usually the way that they happen so and the driver's guilty if the driver knows what the passenger is going to do the driving makes the driver guilty of whatever the passenger did and so it seems to me that on the theory that the case was argued it's a first degree murder and then at the claim it's a first degree the jury somehow felt that that the the shooter was not actually trying to to get the people as the district court also found in its analysis that that mother reasonable explanations that anyone find him guilty of attempted premeditated for murder because that would just be scaring them and then they would get the lesser attempt it yes your honor but however the fact that we've got an inconsistent verdict  this to a constitutional error well it's awfully hard to connect the dots and come up with anything logical except that the jury didn't buy the prosecution's argument and was struggling with some way to come up with a verdict  supposed lesser predicate acts that my opponent argues to you a reasonable the only reasonable reading of that instruction is that if you find that this case mr mcadoo aided and abetted the crimes natural probable consequences is that it didn't list the target offense so arguably they kind of come up with some target offense that wouldn't have actually qualified but you remind me on this in that actual instruction doesn't say what the person's did they still have to even if they went on that very day they still have to decide first or second degree murder it simply says the crimes of murder and attempted murder were committed and then this is that the second wind of the instruction is that the defendant with some some other offense that's never mentioned never argued and is totally contrary to this instruction which both the state court of appeals well as the district court of thousands to be basically  shooter but there was certainly plenty of evidence to support a second degree murder and then again that may be just the jury's way of exercising leniency and in this particular situation but the way the evidence was presented to the jury and particularly the way it was argued to the jury no one can explain adequately from the record that we've got why this natural and probable cause instruction  the the main reason it is harmless under brecht your honor is that i don't think that there is any real prejudice from this instruction because the evidence as presented to the jury evidence is found to show that in fact there is plenty of evidence to support a finding of malice and even with the erroneous destruction there's plenty of evidence to prove beyond a reasonable doubt that there was a and what is his what is his way or argue his lawyer argued he wasn't the shooter wasn't sure he argued he wasn't the driver no ground so his own lawyer argued he was the driver but he wasn't the shooter did he say you should with the codefendant to the motel to pick up a weapon that they proved by these individuals on several occasions  really what happened here is that the prosecution was tried on the theory that the defendant was the shooter fans because of in closing arguments makes makes a pretty strong argument that he's not the shooter and then rebuttal the aiding and abetting theory is trotted out really for the first time and that's how i read horry so it's not an argument for aiding and abetting under the natural probable consequences here's the problem i mean if you get second degree murder second degree murder in the shooter just pulled out a gun and fires it's kind of hard hard to get the second degree murder for the crime or on a vicarious theory now simply  you would have to have implied malice that the driver certainly was aware that the weapon was going to be fired and maybe the intent only to shoot in the direction of the individuals to scare them and that's certainly is enough because it it's constitutional or maybe a different question i don't think that the jury was confused by this instruction it was simply direct and back to straight aiding and abetting on the crimes that were charged that's the only logical reason i can come up with on this structure and presence the defense lawyer conceded my client was the driver and said if you don't find it he's the shooter can't be guilty because mere presence doesn't make you guilty of murder in rebuttal then the prosecutor got up and said oh but says mere presence so long as not satisfy it right that's right and so then the prosecutor said even if he's a driver he can still be guilty under aiding and abetting and the prosecutor specifically told the jury you can be divided on who was the shooter and still find him guilty so and the judge also instructed them so that also set into motion this possibility for confusion because you could have one or several jurors who found him guilty on an n p c theory following that instruction  best as they could and there are so many different references to the crimes throughout that instruction and there was so much evidence of other crimes during this trial that they could have selected and there's a reasonable likelihood they could have selected that and therefore there is a substantial