would like to start at the bottom line in this case entitle to a new penalty trial if this court upon weighing the evidence and aggravation in comparison to the totality of the available mitigation concludes that it's confidence in the outcome of the first penalty trials undermine i would like to suggest what could have occurred at a penalty trial in which the trial court let in all the evidence from both parties in which a jury considered the evidence contained in the currently expanded with the jury of her and i'm looking at the big picture here my best to look at the big picture from the still from this fairly extensive record the jury would have heard that appellant was born into circumstances that demonstra suspended bout with apparently life threatening magic fever a second broken home and in the course of the struggles a parent's character was formed and this character manifested itself with positive and productive conduct under structured circumstances when he was a youth he participated in the street c could get to see scouts he participated in little league he had a pa when he was older and the california youth authority he trained for a job in wilting he turned away from gang pressure at personal cost to themselves was in effect exiled to a fire camp where he eventually distinguished himself for responsibility and leadership in situations of lack of structure deteriorated very badly and getting violence when it came time for the jury to put this compendium of evidence together to come to a just decision two things would emerge with great clarity the jury would look at the jury how it evidence and say we really did the right thing by finding that special circumstance true because mr bill montes does very much look like a menace to society when he's out on the street that being said we cross that bridge the mandatory minimum penalty is life without possibility of parole the california department of corrections runs a very tightly structured operation mr the mounties get some credit for the positive efforts he made in the face of adversity in his life therefore he's a prime candidate for life without possibility of parole that is our view of how the jury would weigh and evaluate the totality of the aggravation versus the totality of the beginning evidence one thing that the jury would have heard that it didn't have a whiff of in the first trial was any basis to any insight into appellants character as developed over the course of his life and we all make judgments about character with relation to people that we're close to an observer great detail family members colleagues at a jury as in this i very very brief snippet of appellants life and i had no sense of the continuity from his early struggles until his till the time of sentencing a mental health expert is a person who is highly trained to take the operative circumstances throughout somebodies life the struggles that they and they endure the decisions that they make given opinion about their core character and then make an informed prognosis about their likely adjustment in in the prison for the rest of their lives that's what the experts in this case were prepared to do as set forth in the deposition which would have provided a very very solid basis for the other people's opinions as well counsel failed to get that evidence at all much less present to the jury this court has granted penalty phase relief since the last argument in this case in a number of cases where the quantum of aggravation was by any objective standard as great or significantly greater than present in this case even if the cherry howard homicide was presented to the jury for their evaluation of appellants role and moreover in a number of those cases relief was granted of what i thought were the relevant terms that would bring really recent cases to like brought up this court's decision in lambright as opposed to land again and there's another case with i remember the capital murder in mayfield i don't remember the other aggravation evidence it was just at this point this  depositions and declarations and documents it's our position that that's ample evidence for the court to grant relief because there is substantial evidence in there but if the court has any doubt as to the weight to be given to the mitigating evidence the weight to be given to the mitigating evidence that's the province of a trier of fact to be giving out just who are such that appellant should be given the opportunity to present the witnesses the background witnesses his teachers during his year of enforced enforced social isolation during his bout with magic fever the people who saw him to convey his his attitudes his events but in terms of weight and impact and believability and cumulative effect it actually can vary some of what the jury would have might have felt if they had like testimony and evidence you're hearing would certainly has a very valuable role there well you have a problem with whether you settled for and  a motion for evidence rehearing that included several issues including the penalty phase ineffective assistance that was an expensive motion and it was filed and we filed in conformity with the magistrate judge phase and at the point where the magistrate judge issued a second recommendation we knew that that would be the final chance to object responsible for the earlier execution style murder of gerry howard and the people's case an aggravation i think intended to present in the event of a penalty phase trial was evidence of the jury howard before that the issue here is terminations of why to seek the death penalty in this case and i'm telling you that that decision was not based on a loan on the status of mcconnell murder but also of belmont days prior not exactly exactly accurate there isn't the evidence was excluded in the first place was because the judge felt that the judge the evidence was admitted as a basis of prior violent conduct under the california statute the judge concluded erroneously as it turns out that the fact that the the prior conviction had resulted no more than a conviction of accessory after the fact was raised judicata which prevented the prosecution  of questioning it mr shit didn't believe off that he would be able to to exclude this evidence and he was also cognizant of the fact that any questioning or any calling of he had no reason to believe that further investigation along these lines of expert psychiatric testimony would be of any use this is not the sort of case where there was little or any investigation done in preparation of a possible penalty phase trial mr ship started thinking about possible mitigating themes early on he and he actually started investigating the matter two months before the guilt phase trial began mr schippers acquired as much information from the state bar from various defense bar organizations in regards to possible defense teams he contacted as people from belmont his background his family his friends he even contacted the state deposition testimony that if you have that that if he had presented his own expert psychiatric expert testimony that certainly would have opened the or for the prosecution for to conduct up the the depositions and so forth in the district court and our understanding was that basically we were going to have a virtual evidentiary hearing in this regard in fact the parties were asked to make  objections to those materials but counsel are are you familiar with the supreme court decision yesterday and wonder you know i knew i knew that it was sort of been granted but i but i did not know that opinion and not when i want to ask my question short circumstances in the limited resources that mr sheik had to deal with in preparing for the penalty phase and guilt phase trials of this case mr schiff nonetheless did perform an extensive investigation i guess and i didn't state he starts out death fairly there is one point i would like to address council would you come in testimony mentions in passing and wasn't sure an oral argument as to his relevance but the mayfield case recently with mayfield out of our court  i believe i believe did my initial brief but off the top of my head i don't recall that the pertinent facts i but i do you recollect is as being a case that i discussed in distinguished in my initial  proceedings below in the district court now now the easy walk away out of this of course is on prejudice i steadfastly maintained that mr ship was not ineffective at all in fact his performance in and the other factors well that's that's not the proper analysis because we know here that the jury did in fact find gets to be an appropriate punishment based on the scant aggravation that they weren't given here additional evidence that belmont stakes was personally responsible for this execution jerry hauer murder would have made their decision a foregone conclusion and certainly would have overwhelmed whatever negligible people first well in this case the jury was given a picture that was far different from from the reality of mr belmont his background of course they were given a picture of this person and a good ship should be congratulated redeem himself during his see why any experience now this is additional evidence and therefore he might likely be a model prisoner first of all is not would not of provide additional mitigating evidence but just the opposite and moreover would likely likely had anti social personality disorder now i do recognize that there are some cases out there that in certain cases aren't usually  anti social personality disorder and it being in fact that the thing that might have been less culpable for his crime because i i frankly i can understand the reasoning there but i do recognize it exists but not in this case because the defense theory present those themes very clearly and again would present this gang evidence were presented these additional acts that belmonte has had tried to take a police officer's weapon police officers weapon away from him while he was anything and this mitigating evidence even if it would have provided some minor basis for mitigation it certainly could not overcome the avalanche of additional aggravating evidence that surely would have come in and and he he recognized that the mother was not was not a good witness and she had interviewed her beforehand he had spoken with her but he nonetheless felt that it was incumbent upon him to present the  mother in regard to his overall humanizing theme with the family and all that other words the jury would have certainly been wondering ok where's the mother if he's got such a good relationship with family and friends so there was a little more that could be done with them with the with the mother other than telling her how to testify which of course would have been beyond the role of of counsel in this case and and her testimony that she didn't believe that her son did it by the way also adamantly insisted he didn't do it from the very beginning and he still does so far as i know it would have been very unreasonable to turn around in the guilt phase and say well ok he did do it but you should forgive him because he's going to be a model prisoner or whatever it was and mr slick was supposed about that extensively and he did consider that and rejected that possibility because after having witnessed the mistakes of earlier defense attorneys presented penalty phase c additional credibility determinations to be made in this record because neither side has ever questioned whether these witnesses would in fact testify in accordance with their depositions or that they were testifying truthfully i think that  all the experts here were were testifying about what they really would testify to belmonte his trial the fact is would that have made a difference the answer is no for all of the reasons i have set forth here today in fact this is not even a close major life event a year of social ostracism based on a bout with an apparently life threatening romanic fever we know that a lesson next is educational history council obtained none of educational records which are now contained in the record and which would have shown his ups and downs as he was coping with depression and other things in the course of his schoolwork employment and training history coun failed to investigate in any way appellants employment as a youth which is a positive characteristic as described by as recognized by commonsense and as noted by the mental state experts which is now part of the record area of investigation is family and social history well here trial counsel did a modest job of contacting the mother two friends and the people from the the pastors from the  counsel might be on the verge of a finding the really compelling witnesses about a particular aspect of his life or counsel might be fine great redundancy here  counsel had contacted appellants mother who in principle would have been a valuable witness as to many of these major life events that appellant experienced but he didn't ask her about any of those and apparently didn't know in any of those he did not ask the mother anything about appellants reaction to the death of his younger sister when he was five years old eighteen and showing them to the mother in the course of the examination i'm sure she would have been able to expound in a very heartfelt manner about all of these incidents throughout appellants life and which would have conveyed to the jury these major life events but the examination of appellants mother was yes i know he didn't do it when in fact there was there were there was twenty two years of life history that she could have described that would have made much more of an impact on a jury showing the effort the state's comment about the howard case and the role that mr scheck played in effect keeping that out on that prior round do you agree with his approach or not well the the the deficiency if if i may in attained exactly the same type of in live in a ruling as to what this would open the door to as your pain in the trial court and then if you've done an adequate examination had this evidence of it at his fingertips could have made an informed tactical decision but what to present and what not to present that that didn't happen because counsel failed to investigate and marshal the evidence the trial court was eminently willing to exercise its discretion to make sure that evidence that was more prejudicial than probative would not come in and we have  was awash with the mitigating evidence but certainly that was an indicator to mr schick that if he tried in the penalty phase to say his client was not a violent person that the first thing the state would have done would be to say wait a minute we've got this execution style killing which this person committed and that's obviously relevant and we would have a very heavy impact on the jury would it not well you know for good institutional adjustment of sense to life without parole because that is really relevant skipper evidence under skipper of the south carolina what's the best shot i can take on that well i show all of his good conduct in the youth authority not just the sketchy part that i showed and i got some mental state experts to examine him to make an evaluation of his character and to give their opinions about how he would do if sentenced to life in prison and i don't think gang activities but we have a very different situation when it comes to penalty phase because it only has to do with the prospect of his nonviolent conduct with the prospect of his good institutional adjustment with the prospect of his positive contributions to prison society if sentenced to life without your saying then is that there is no prejudice here that there is prejudice here because the howard evidence would never have come in i'm saying it's very very likely that  trial judge made the kind of decision you made here with respect to excluding the excluding the evidence would have made the same decision excluding the evidence under relevant california supreme court authority people recall in which  of construction situations as to his future kind of construction situations there is a strong likelihood that it would would have been excluded for the same reasons that the friend kavanagh's report which is your twenty two this is the report that he made soley for guilt phase purposes and he found that mr belmont is was competent to stand trial not guilty by reason of insanity and had no diminished capacity as to felony murder he did say that mr belmont these violence appears to be triggered by drug  drug use and his impulse control which maybe none too good in the first instance seems to seems to deteriorate with drug usage now that is in taishan to inquire into these care these mental state characteristics of impulse impulsively combined with drug use and if counsel conducted follow up testing that have in that direction he would have found that there's an unfortunate incidence of organic brain syndrome which is has a has a documented effect of rendering the people who have that condition subject to impuls act in unstructured situations and can virtually people with this affliction are much more able to control themselves and to manage their behavior under fairly rigid rules this would have been  another piece of medical information that council could have presented to to underscore the basic themes that that the that that petition acknowledged in his allocution to the jury that he could not make it  prior involvement in violent conduct or something like that something there are two to three actors three factors circumstance of the of the capital murder second is prior convictions and third is prior and adjudicated violent conduct the can be proved beyond a reasonable doubt and so what happened here was we had a prior conviction consisting of the accessory after the fact of voluntary  manslaughter the trial court said well you can introduce that because that clearly comes in under factor b but you what you're suggesting is that you want to in effect impeach that conviction and present live evidence that there that this this was and and i'm unable to say with the same degree of certainty that the prosecutor prosecuting can go behind a previously say stella's verdict to prove a greater degree of crime to at this point i don't believe so your honor i believe that the issue of the scope of the jury how that evidence was was resolved prior to the beginning of the trial as opposed to after the defense had presented its evidence ok you know with respect to  supplemental briefing with the course disposal here a little difficult but i mean you wouldn't know by looking at me but i'm in the middle of the first vacation i've taken in over eight years right now i have accommodated this argument to have my family with me in san francisco today so i could take part in this argument but i'm not going to return to my office and tell close to the end of the month