good morning your honor joel newton on behalf of appellant alan fenster is with me here at counsel table on this case morning when this case presents a question of when twelve people in a jury box or not a jury and what it takes to convince convict a defendant beyond a reasonable doubt in a trial apprentice teaches us that there are two important things in a criminal trial those two important things are what's the burden of proof and who are the trier of fact of fact in this case the burden of proof was shifted to appellant gonna buy the jury instructions that were given and to try or in fact turned out to be the california court of appeal not the the jury ever told that being unconscious was a defense to these charge all the testimony dealing with her own consciousness they did they yes they get allow that testimony but the trial court restricted that testimony to two other defenses to the defense of hallucination and to the defense of voluntary intoxication the jury was told in the jury instructions that they could only consider the evidence with regarding mental state with regard to those two defenses the jury was never told that they can consider that testimony with regard to whether or not there was intent to kill which unconscious if you are unconscious you have obviously no intent and that you have no intent to kill this error was compounded by the fact that during jury argument the prosecutor told the jury multiple times that the evidence that you have heard regarding ms ghana's mental state is not to be considered with regard to intent to kill further they were told that they had to make an affirmative finding before they gave any weight to that testimony and that is directly contrary to the law with regard to consciousness and unconsciousness at no time did the jury learn that a person is can still have movement and still talk and be unconscious for instance if a person sleep walks they're on conscious but they move and many people talk in his sleep but the defense could have introduced evidence to that effect is that right the defense introduced some evidence to that correct but the jury was never told that they evidence on the medication the evidence on the medication said you can only if you find based on this evidence that she was either intoxicated or hallucinating then you can consider it as you may it seems to me that it's clear that the jury understood that only if they made that finding could they consider that evidence for anything in the case and therefore the jury never ever considered that evidence certainly not to kill and they certainly never ever considered anything with regard to conscious or unconscious you introduce evidence that a person could be unconscious other p had to be conscious that is a legal instruction with regard to the long california i recall no direct testimony that told the jury that specific fact it was obvious from the testimony that ms gonna was moving and th she did make actions whether or not they were voluntary in a legal sense is another question so the thing that is complicated by it it's absolutely clear that the jury wasn't instructed on on consciousness or consciousness and it's absolutely clear that the normal perception of a juror would be that if you're moving you must be conscious and in fact the prosecutor argued to the judge that you couldn't give the instruction because there was evidence that she was moving so it's very difficult to accept any statement that the jury would be more enlightened with regard to what's conscious and unconscious than the prosecutor in this case and the prosecutor argued to the jury that none of that evidence that you heard is a defense to the crime when in fact all of the evidence that the jury heard was a complete defense to the crime of murder well i don't think it's a bad argument i think you've got quite a decent argument what makes it tough is that we're not under no review are we well you're on  cannot have a substantial and injuries effect on the outcome of the trial when the entire case was tried on her having the mental problems based upon the medication and essentially being unconscious and the jury was never ever told to decide it and there was no jury instruction that specifically told them they had to consider all the evidence that was given whether or not they made a finding of it in favor of the defendant on the issue of reasonable doubt you're going on  unreasonable application of clearly established law problems yes ok i have if i can i and if there's no further questions i'd like to reserve the rest for rebuttal of those questions i'm happy to answer now give me one moment to see good morning you're on earth christopher beazley deputy attorney general on behalf of the respondent under the section twenty two fifty four at her as you mentioned a few minutes ago judge when the question here is whether the court of appeals decision in applying the chapman standards to the error that happened here whether that was unreasonable or whether it amounted to unreasonable at the cation of the chapman standard as outlined by the united states supreme court court of appeal went through very thoroughly what happened in this trial and while yes there was and we agree that there was a mistake that was made at the unconsciousness instruction should have been given that error was harmless beyond a reasonable doubt judge marvel you mentioned a car asked a couple of minutes ago whether it's conceivable that the jury which received all of this evidence about mental state and about the drugs that she had been taking for chemotherapy and the ambien that she was on and the depression that she was experiencing because of the failing of the family business and all of those various factors whether it's conceivable that the jury may have just rejected that defense entirely that evidence the answer is yes we know that because the jury w instructed by the court on hallucination and on mental defect and was explicitly told by the trial court that you can use this evidence to mitigate the crimes you can use this to find that there was not a specific intent to kill you can use the hallucination evidence to determine whether there was premeditation deliberation and willfulness as to the first degree murder this is a jury that received those instructions and yet none the less returned a verdict of first degree murder with premeditation deliberation and willfulness in addition to finding the lying in wait special circumstance that this was a person who waited for the opportune moment to strike and made a true finding as to that special circumstance given those instructions that the jury was given that it could use that mental health evidence for the of purposes and rejected it wholesale suggest doesn't suggest it establish that the failure to give the unconsciousness instruction in this case was harmless beyond a reasonable doubt beyond that this is a jury that is also informed instructed by the trial court on all of the elements the mental state elements for these various crime crimes and findings that it had to make the jury was instructed that what malice is malice is an element for murder express malice as an intent to kill implied malice is a conscious disregard premeditation deliberation willfulness those are all states of mind that the jury had to affirmatively find beyond a reasonable doubt in order to convict him is gonna of first degree premeditated murder so the jury had to make decisions as to her consciousness based on instructions that were given and ultimately made a finding that this was first degree premeditated deliberate murder and rejected any idea or any notion that the at the feds evidence created that maybe there was mitigation of the of the mental state in this case the court of the state court of appeals decision was reasonable in its application of the chapman standard of review and we asked this court to affirm the district court's denial of the i beg to differ with the statement of counsel that the court of appeal resolved this under the chapman harmless the constitutional test under our most beyond a reasonable doubt the court of appeal decided yes under california harmless error test which was why people persist watson the court of appeal in its opinion does not specifically mention the past but it is quite clear from reading the dissent where they only talk about this case should have been reversed on the more favorable to the prosecution standard of watson so this is the california court of appeal never ever considered whether or not this evidence or the jury instruction was harmless beyond reasonable doubt with regard to the argument that the jury was given other instructions that could let them resolve this question beyond a reasonable doubt i point to two cases that were mentioned in supplemental final and one is francis versus franklin and the other is sandstrom versus montana and both of those cases reject the argument that general instructions on reasonable doubt presumption of in real interest and things like that  can negate the harm of the instructions that were erroneous of the given in this case the instructions that were given on mental state to the jury was if you find that she was voluntarily intoxicated or if you find that she was hallucinating you may then parentheses and only then consider that evidence for any purpose that you want the instruction that the jury never heard was if you are not if you have a reasonable doubt that she was conscious the burden on the prosecution instead of the defense you must find the defendant not guilty didn't give the jury discretion to do what it wanted there is no reasonable way that a jury could understand from the instructions that were given that if they had a reasonable doubt about whether or not she was conscious they had to find her not guilty in effect this trial was a slow plea to guilty from his gun is gonna testified in her own defense the testimony that she gave and that all the testimony that was presented under the instruction given said convict her of murder that is not a trial in america i hope and i hope that it never becomes a trial in america it is in thank you very much counsel to both sides of the argument in this case the matter submitted for decision