but the questions that i would like you to go to going back to the record  you how did you preserve this from the standpoint that it appears that when it was first raised it came up in a reply brief and it came up in the context of the due process argument as opposed to the double jeopardy and the collateral estoppel issue and so i'm just not sure anyone is really ever been allowed to address this it would be and then when it came into the trial  there wasn't there was an objection for the due process but once that happened then there wasn't any objection about the collateral estoppel so the court wasn't allowed to respond to that particular objection so i've got a problem with the record on this here well the response that let me start with you california supreme court because at that point i believe the attorney below had raised the specific double jeopardy argument now in the last issue he does bring it up there and he does bring it up in the petition for a hearing much clearer but what i'm trying to get at is the attorney general's point that the i agree it's thing or it's there apply u s supreme court law on that point is that the flipside of why we do give difference to them but they're presuming to correctly look at the u s supreme court law on double jeopardy and apply it now the general is on the opposite side of this issue was arguing you know we didn't raise this issue a low that you have authority since you're the california supreme court rules twenty and twenty nine to review work a human issue for the first time here and the california supreme court agree that's people the randall at thirty five fourth ninety seven where they said although generally they won't review a case for the first time on appeal however quoting in a number of cases this court has decided issues raised for the first time before us where those issues were pure questions of luck with this  of having sexual intercourse with someone under fourteen doesn't have to be a rape to be a crime and then and so i mean rape by obviously involved again a person's well learned by force or fear or any number of things without their consent so they're not exactly they're not really the same crime and so it's not really by virtue of when the due process are given falls when the court says no you have noticed you have no this of that they were you know of this sexual intercourse and all of that then when they presented there's no objection there at that point saying ok and work he was acquitted of rape so therefore that acquittal must mean that therefore you can't put anything in about the sexual intercourse and so even though there are separate crimes the court doesn't have it out there so we have nothing in the record here and so the first time that we ever really talk about any of it is here well first we go back to you first claiming if they had talked about it you know as a trial judge putting myself in that position if that issue were presented squarely in front of me it's like ok that is different than just double jeopardy in the due process context it's like ok i have to  what really happened in that part of proceeding what can you bring in and then you're trying that for then you have the three crimes that could constitute and now you can argue well we don't know even though there were thirty crimes supposedly that happened we don't really know considered the collateral stop is part of the whole jeopardy just seems to completely unreasonable welcome now i just figured that should that come back to the district court to consider it in the first instance no i don't think so here because it's such a clear violation mentioned that at all well i mean i did find that there i think the fact that what counsel was talking about is the two issues one is raising and the other is whether the court considered it when our brief the fact that the court never considered the issue means that it's procedural defaulted which is a separate issue from exhaustion so i'm not sure i understand your desire to answer a question you know well i'm not sure i understand you're on a due process issue here but i don't see how the fact that you turn and check to see i mean you're not surprised how do i make that well his claim was that he was surprised by the fact that they raised evidence of the sexual intercourse at the second  trial if that is true when the evidence was presented at trial he would have presumably made an objection and nothing was ever discussed about the issue well he didn't raise the collateral estoppel there i did that i concede there he did he objected from a due process standpoint saying you can't bring the rape but because i you know i haven't i haven't had adequate notice but he didn't say once the court ruled against him on the due process he never said ok second issue i was found not guilty here and therefore all of the facts here should not be a part of the second trial because there are you know i mean then they become mer this verdict where you have all of these facts that are testified to between the two young women but you also have that sexual intercourse and i don't know how you can pull that out of the verdict and say because the instruction says the jury doesn't need to say they don't need to agree on on the due process issue i think again it goes back to the fact that this is a continuous course of kind of defense and i think that's the the core of this issue i mean there is no there's no requirement under federal law that  yes i can see that then aside from the chance to prove that in the next week or so i would say that this would have to go back so that we can address the issue of a must there is no reason to believe that this court would like address of the for in the first instance i believe the district court should have that opportunity laura and the supreme court cases that cited point that again this california statute you don't even need twelve jurors agreeing that the rape occurred for it to be part of the very one juror can say i'm going to find the ra