it please the court william robinson for the helen one valdez i want to focus in particular on the prejudiced issues today first which standard applies and second whether the  prejudicial under a proper brecht standard obviously if the court has questions on the question of federal constitutional error ivy's or to address those as well the jury in this case was told that respect to the target prejudicial under the bright standard given the fact that we've all doesn't defense given the fact that there was evidence that he was too out of it to remember anything about it he said i didn't make those threats that doesn't turn on intoxication so if you believe the jury believed other people that he actually made threats that has that taking a gun is going to mean a get shot and somebody can get killed that has nothing to do with intoxication it's an objective issue so all those things being true then where's the prejudice ok first of all i'm not going to argue that it's pretty clear the threats were made there was evidence is that fact and our whole position throughout has been that's not determinative here if i threaten to kill someone say i'm going to come back get a gun and two hours later i come back with a gun and simply shoot them that's one thing but that isn't what happened here there are threats to kill here made in the context of the friend having gotten beaten up and the return when nobody's there and there's no dispute about that he goes back and forth two or three times yes let intoxication help you get with it let's talk about what happens when he comes back first of all the first time they come back they go and get mr valencia who ends up being the shooter and they return but they don't have a gun there is no gun there they're coming back to fight and that's what they say all along you want to fight somebody when they can't get in some more threats are made the second time or the third trip back they go and get the gun when they go out and confront the two men who are there who with a with a flashlight the same sort of flashlight and the other with a with a piece of metal and found this is the key thing at that point is valid this is behavior focusing on these gentlemen which is simply to call one of them to come out and fight him that's what he wants to do the the evidence is undisputed as to that fact and there are no threats to kill made by him on that occasion at all without a threat to kill listen have to be made simultaneously with the killing i mean t of your brief which doesn't compute with me there's a there's another the problem here let's take my hypothetical i threaten to kill i come back to ars later i shoot what kind of murder would that be under california law no doubt about it that's a first degree murder no doubt at all that's premeditated that's planned the jury rejected that in this case in other words if what this was was a plan to come back and shoot people with an intent to kill this is an absolute no question about  degree murder the jury rejected that clearly they were focused on what was going on at the time clearly their verdict of second degree murder means that they believe this was a momentary heat of passion kind of shooting by valencia  to focus on what's going on with him at that time what is he doing that's going to facilitate either the target crime of shooting at a building or the crime of murder and again the fact that  as your honor mention the fact that the evidence about the the arm gesture is disputed is is a very important fact because if in fact as one of the two witnesses said mr valdes does something like this and at that point valencia goes and gets the gun that really looks like he's involved with the act of the shooting but we call that the second witness who was the one mr de haan who was standing facing valdez says he was testified he was looking at him the entire time he never saw such an arm gesture it's a very important fact that jives with what valdes testified to and also what valencia testified to the less he had no reason to say something other than what actually happened in terms of going to get the gun he said he decided on his own to go and get the gun to back up want to got in a fight so now again we're not talking about a sufficiency of evidence standard here we're talk about instructional air and how it's prejudicial not think about what this in the for the intoxication struction would have done in terms of the jury's consideration of this case number one as i pointed out earlier me it would have allowed them to look at the threat evidence in a different way this is someone who's really drunk and when he makes threats like that you might think of them differently than someone who is s number two and this is probably more important at the scene there the third trip back where the shooting actually happened intoxication the expert who was called talked about this thing called alcohol myopia in which someone who was drunk who's intently focus on something would fail to notice things going on around him in the periphery so this was very important to the notion that valdez lack the knowledge that polanski had gone and gotten the gun which was what his defense was when testified he was surprised when the shots were fired now of course again there's parts of his testimony the jury obviously you know would not have credited but on that part there really is no dispute he never turned around to look at the guy with the gun he never said anything to encourage the guy with a gun in fact the testimony of both the han and chris is that even at the point right before the shots were being fired as they are running away down the side valdez is still calling on him to come back and fight that is his sole obsession the entire time so the intoxication evidence would have put this in a con not the evidence but an instruction that would have allowed the jury to consider the facts of intoxication on the knowledge and intent elements of aiding and abetting was absolutely crucial in this case and again this was a case where it where the defense had proposed such instructions and they were not given and the courts that have considered this have all agreed that these instructions were misleading and confusing and would have led the jury to think that they couldn't consider intoxication the evidence of the extent of his intoxication although there wasn't a quantitative analysis done not for lack of trying as we pointed out in the reply brief  it was quite extensive you've got you know people right at the time of the banging incident saying he was obviously drunk you've got the girlfriend and valencia saying that when they came to get him he couldn't understand he was slurring his speech you've got the fact that when after the shooting takes place he's driving the car he swerving all over the road to the point where valencia eventually takes over and drives a car so and you know the evidence is he drank somewhere in the neighborhood of ten beers in a fairly short period of time right before the first  place at a fairly quick period of time so you know you look at the california cases i'm ahead of time i'm going to reserve my forty one seconds and think about that's the ball and how much can be done in forty se the evidence was that as the state supreme court of appeal faded extraordinarily strong on the defendant's intent and purpose he acted very purposefully in this and he acted harm our view is that it was state evidentiary error and therefore they properly applied watson however if as the district court found there was a due process violation then yes if there was a due process violation if the instruction so infected the trial that it rose to a level of federal constitutional error then yes you're correct they should have applied was correct but how it is to know for your honor i do agree with that as i regret my brief we stated that it would be a deferential standard but since the state want to know the harmless if in fact there is federal constitutional error and the court since the state court of appeal failed to use a chapman test then  would review bracht the harmless error analysis to novo rather than giving deference to the state court of appeals conclusion it's sort of the equivalent to the state harmless error test actually is kind of immaterial exactly your honor to be for to additionally saying i think that's what got the district court walking down the wrong path exactly whole so overwhelming on his that he actually did form the intent he specifically denied having any intent he made  to come back and kill the party not just bouncer but the threat was to kill the party goers to kill i think all of you expletives then he purposefully stated his purpose his purpose was he was angry that his friend was injured he also specifically testified that he felt guilty because his friend asked him where he had been during the fight and he felt bad that he wasn't there to defend his his friend and additionally for example with the hand motion he denied making the hand motion but and other witnesses saw him make it whether he made that or not really was a question of fact that the jury had before it resolved against him that had nothing to do with whether he was intoxicated or not in addition when he said that he gun to the scene he didn't know that he had he claims that he went back to the car got it but he also testified that for once it was behind him if whether you're drunk or sober as someone is behind you you're not going to know what they're doing so he has an axe where purposeful they were intent it's showed strong intent he carried out the very threats which he claims he was going to carry out forth making those those threats and in fact everything he said he was going to do he purposefully did and he really he did he remembered exactly why he was doing that are basically we think the evidence was so overwhelming that even if there was federal constitutional error the evidence of the defendant's purposefulness and intent was just a couple of very quick points i make forty seconds but without time out so it's really not like basketball because that can last fifteen minutes the only judge you ever apply chapman although didn't say he was applying chapman was just as mara in his first opinion he found that the pretty fundamental error i believe that the district court judge made in this case which is to say that the act to break the natural probably consequences of the act of bringing the gun to the scene is what's at stake here actually that's not true under california law because we pointed out in the br that the d a alexa target crime the target crime in this case was shooting in an occupied building so in order to get to the natural probably consequence doctrine the jury asked conclude that mr valdes intended to aid and abet the crime of shooting at an occupied building and that brings us back to the really important question here which is what was happening at the moment of the shooting and our point has been throughout mr valdez was completely focused in his drunken obsession with fighting the bouncer who had hurt his friend and the fact of his intoxication goes a long way to explaining why he wouldn't have been aware of the fact that the landsea was behind him with a gun and about to do the shooting thank you all right thank you