in this case a very experienced district attorney who was experienced enough to charge a special circumstance murder and the judge misconstrued the burden when you have  address defense in a felony murder case so it's reasonably likely that the jury also misunderstood that burden mr munson as his trial attorney asked for the model jury instruction calquing them three four zero two that model instruction includes a paragraph saying that the prosecution has the burden of disproving to rats once the defendant brings forth substantial evidence of tourists as the california court of appeal found as the trial judge in california court of appeal found mr montanus did the prosecution has the burden of disproving duress but the jury they deleted that paragraph the prosecutor encouraged the trial judges to delete that paragraph putting the burden on the prosecution and the judge to lead to that paragraph and that's why we're here today the court of appeal the california court of appeal found that was plain error it was plain error to not tell the jury that the prosecution had the burden and that plane error was exacerbated in this case by the prosecution's closing argument so for you to buy into directs you first must believe he's town what he's telling you second you've got to swallow it whole to believe it and third and then you that your client didn't participate in the crime though there were two defenses one was that he was there he was under duress and didn't do anything other than pretend to to rape the victim of course his d n a was not found on her foreman's d n a were found on her his was not so but certainly the jury focused that was in his prime his primary defense was that he didn't participate at all i thought isn't that what his primary defense was his his attorney the primary defense that his attorney argued in closing argument was that he didn't do anything wrong well you know the whole case what the primary defense was was that he was just there he didn't have anything to do with it under duress because i was afraid of my brother and certainly the jury credited that defense because they didn't find any of the special circumstances and they asked on the third day of deliberations they asked in jury no number five what is the definition of duran's we can't find it and once they were given the faulty definition they then on that third day of deliberations found found him guilty but i think you're you argue in your in your court talked about how you look at the the court's unreasonable factual findings if they're not supported by the record and so how does that what do you say and what's the on reasonable factual findings here though here  an unreasonable determination of the facts can do i want to quote the state court had before it yet apparently ignored evidence and here the state court had their opinion is this very terse one that he wasn't involved he didn't rape or he was a bystander to this heinous crime and you know we all understand that defense counsel to sell to the jury the notion that well he really wasn't involved he didn't do anything but if he did do something it wasn't under duress i mean that that your advice that invites a jury to  g credibility issues where you are never denied being there he was there his d n a wasn't found on her and he the jury heard from him that yes he did get on top of her under threat his older brother the disciplinary and who had beat him severely who is a serene you know who is not going to to be violent who had just before said that when he was encountered that same night with someone with a gun he should have shot him his brother who was waving a gun around told him repeatedly take your turn after your man had already raped the victim he said take your turn he repeatedly said no and was trying to stand up to his brother and then finally decided well to get on top of her and pretend and i counsel the judge cooled if i could inject a quick question so assuming for sake of argument that he was under duress and faking murder for sodomy rape robbery and any of the four special circumstance they found all of them not true so steve his older brother who was the darius they found the special circumstance true for him so it's unclear what they found his role to be it could have been as you say just told that he was he was there while the other two victims were tied up and so his presence could that he was scared of steve and thought faking it was the only way to get out of the situation i think the record also shows that mr montanus never testified that he believed his life was in immediate danger if he did not do it as required to show direct yes he also i think admitted that despite his claim of being scared of stevie never tried to leave during the course of the day while they were there or also for after driving around for hours and continued to associate with steve mean couldn't the jury have reasonably infer that he wasn't under duress because of that urine are three more times that mary and these please so yes i think under the false and misleading jury instruction the jury would think he didn't prove it and when the prosecutor said he has to prove the dress all that's required is that he raised a reasonable doubt so all he had to do under california law kernel code section twenty six is raise a reasonable doubt of whether he waving the gun around and he repeatedly told him get your ass over here repeatedly ordering him steve was ordering everyone to do things and even later at the gas station the gas station attendant was afraid of there was no state court decision reasoned decision no your thank you ma'am please the court fence and law pietro on behalf of the warden the state courts harmlessness the termination was a decision on the merits that is entitled to deference under iowa in this case mr montana's argues that the state court was unreasonable because it ignored facts well let's talk about that before you go any further because the california court of appeal decision here never mentioned the federal due process claim or soon federal  to address federal claims and they are not required to explicitly state so i believe that's under johnson now but they would that they sort of reference i mean they're kind of in between they didn't specifically state they did use the state just referred to chapman they didn't say we're reviewing the federal claim but they said they were viewing the state claim under chapman it puts us in a very little bit different  that sentence of instruction which rep itself represents a deviation from the ordinary course of instructions which can be a due process violation under a style if it misleads the jury so by applying chapman expressly acknowledge that there could be a due process violation here because there was a deviation from the ordinary course of instructions well that's my whole question i guess assuming we give  deference to the california court of appeals chapman determination should we address the merits of of montanus federal due process claim to know well because the california court of it put field clearly did not address the merits of the issue right they addressed the merits of a potential drewe process lie lation by discussing chapman in order to reach the question of whether the united states constitution specifically acknowledge the federal claim and here i understand what you're saying or i believe it would be like an ineffective assistance of counsel claim under strickland where there are two prongs and if one prong is not satisfied then there is no reason to address the second and that's the exact same issue here if the chapman analysis is reasonable there was no prejudice then there is no reason to discuss whether or not the constitution compels the sentence omitted  he he was and he did as the state court explained omission of the sentence did not mislead the jury although well it did him in the burden shifting proof in a affirmative defense like this is you know it's not a it's not a trivial matter i mean it's one thing to have to prove it but it's another thing for the state by implication that is that the prosecution must prove its case beyond a reasonable doubt as defense counsel emphasized during closing the prosecutor the defendant had no burden of proving anything and they said if he acted under duress then he is not guilty and that means that if by implication that means of the prosecution has not disproven that then he would not be guilty but the instructions the directions russians do require as the court noted in immediacy and a life threatening act which was simply not present further as a district court noted and its report recommendation oh and those school indicated  there were multiple theories under which mr montanans was guilty aiding and abetting the robbery participating in the robbery aiding and abetting the right and here his only testimony regarding the ross was his act of participating directly in the rape but he did stand guard over the two male victims while others were quote taking their turn and he did participate in binding the two male victims going through their pockets and robbing them to the extent that mr montana as relies on the special circumstance i would know that the special circumstances require and tends to kill and so it's easily explainable that while interject two quick question of the first is i think what you were just saying that a person does not need to have an intent to kill to be liable for aiding and abetting yes  the second is a is the matter of curiosity because the allegations here will be my experience other you reported cases federal cases or state cases where a person has been held to have raped another person under duress i'm unfamiliar with any your hon r i believe the issue here is slightly different because it's a felony murder and he could have aided and abetted in the right and for that reason was guilty of the murder that happened in the course of the rape or robbery so it's a little different i don't know off the top of my head about the rise and rape particularly thank you but the california court of appeal determine that the instructional error here was it was harmless beyond a reasonable doubt right and that it was rejected so i'm just trying to figure out because i think we have to decide whether that was reasonable  and how was this noble determinate where mr montanus testified in support of his jurist defense he clearly presented sufficient evidence to shift the burden to the prosecution and i guess what causes me some pause is here is that the jury specifically asked about to rest during their lengthy deliberations ye yes your honor disproving to russ isn't necessarily a function of calling a witness to give affirmative evidence it can be done as was here through cross examination and other  in other evidence such as the night shift manager at the gas station who said that mr montana's and his older brother were out and it was mr montanas who was calming down his older brother in the course of events at the gas station but on cross examination the prosecutor elicited admissions that you know his brother never pointed the gun at him no he never directly threatened him and indeed as he told the police officer he  he was resistant to the notion until he decided that it would be better to go along just to get his brother off his back and so all of that evidence definitely refutes any notion that he was participating in the rape  under duress again that doesn't cover aiding and abetting the rape or the robbery or aiding and abetting the robbery for those reasons the state court saw discrimination was reasonable the district court properly conducted  that they were looking at due process in a standalone federal but this is what the california court of appeal actually said as the trial court failed to fulfill its instructional duty it plainly aired instructional instruct shuttle errors including mr scription two missions or presumptions are generally reviewed under the harm with beyond a reasonable doubt standard of tappan that's why the kalak or california court of appeal apply tappan they don't don't we have to reject the petition regardless of the merits of the due process claim if we uphold the state courts harmlessness determination because that would necessarily as mr directed thought well he didn't approve it prosecutors said he had to prove he didn't prove it then if this court has any of it if that's reasonably likely then that's prejudice under breath but for that i   that they provided and whether or not they are reasonable and one of the reasons they gave was the instructions gave the jury enough guidance to understand the burden and that montanus is duress defense was weak so i guess before you conclude what is your best argument or case as to why this determination was objective lee unreasonable but the best case is tailor versus matter when this court looks  california court of appeal decision and sees that there are very few facts that it's actually looking at and when you look at the briefs in this case and the briefs that were filed in the state court there is a litany of the