please the court my name is mary polk alice before you start can i just and you are i have you all conferred as to how you might divide arguments to the issues are you all going to cover all of the issues it's up to you we're not going to cut short your time i just wanted to know well we had discussed this earlier not knowing you were going to have us come up here together so we're we're both prepared to handle our own case individually there will be some crossover but i think we'll just proceed i'll start that's fine you all will get your fifteen minutes each i just want to the government  terrance t varner heaving the t of the whole factual record here i want to i want to do two things here first i want to make some comments on the standard of review because i think that's important on the harmless error issue and then i want to go right in to the instructional err on proximate cause i think if that instructional error is found by you to well we all know what happened that was conceded below if you determine that it also was not harmless error that it was prejudicial then the whole house of cards falls apart the murder conviction has to go out to and everything goes back to the court many of the other issue simply become moot you don't even have to address them so starting with the standard of review as i've indicated in my opening brief the standard to review here on harmless error of course is brecht however you do not defer you owe no deference to the state court here in this case for one reason and this is controlled by inthe of on which allows you to review it without deference because the lower court did not apply the brecht standard of review on harmless error it did not follow the controlling federal law the requirement was to look at the record as a whole and over and over and over again and that did not happen no one was more surprised than i was as i worked my way through this record constantly saying well court of appeal didn't even consider that they didn't look at that they didn't look at that you know they didn't look at the whole record but what shows us that well the main thing that shows you that is from their opinion when they state the overall picture they describe what they say is the overall picture this is that excerpts of record forty nine in the court of appeal opinion they basically just give lawrence nero's version of events that's all they say they do give a very detailed rendition of what this person said what that person said but nowhere do they see or do they account for the fact that lawrence nero in his most devastating testimony was joe reckless contradicted by multiple witnesses and that being he said that they'd gotten into a beef with this guy and my client walks away and comes back with two loaded firearms and gets in the car and then they go back and then they follow the victim away and gun him down that's really really devastating information and that is all that the court of appeal looked at on the other hand as i go to at length i don't want to spend a lot of time in my argument on the details because it's in my brief at length there was every single other eyewitness said differently said my client was in the mix at the party at the dispute at the scene that he was in the middle of the pushing and shoving yelling cussing match that was going on there that he was in the car when they arrived he was in the car when they left which just makes a lie out of everything else that mr niro said but the court of appeal ignored all of that how is that helpful that i guess i don't know why it matters i mean so there's this lead up everyone agrees there's some kind of fight whoever's there or not it but eventually the car goes and there's the shooting with two shooters i mean there's more testimony about that later i'm not sure why it really matters the details of the original fight well the court of appeal thought it and well how do they remember maybe it's just the background fact and they give one account in the background fact i'm not quite sure how you they called out the overall picture while it may be called the overall picture but in the analysis of what i mean i don't know why those what part of their legal analysis turns on the exact description of the original to tussle well the important fact that mr niro said and the prosecutor hammered away at this in her closing the important fact was if in fact they went and got him he wasn't part of that scene he had no reason to have had himself worked up or to get into that manslaughter state of mind that he coldly and calculatedly walked away got guns and came back it makes a huge difference in terms of the only defense that my client hand to murder charge was manslaughter and the manslaughter becomes critical that he was in the mix in the middle of it that very little time passed that one of them flowed from another very quickly but so your manslaughter argument as i understand it depends on intentionally shot ok so that's where i'm going and that's what i want to really talk to you about today because i think it's pivotal to my client and critical to the case the there were two shots fires there were two shooters it appears from all of the testimony one shooter shot one bullet the other shooter shot a second bullet from the corner we know that one of but we don't know when all the testimony is that right some  testimony was there were even more shots we know two shots got into the body but we don't know how many shots there were or purposes of the enhancement from the coroner's testimony there were two shots that actually penetrated the body ok so one of them was fatal so he went for gabby for interrupting but so a lot of your brief was about the fact that we don't know which of the two shots mirrors the underlying section of the code that if you find the defendant guilty you must determine whether the found and tension and personally discharged firearm and profitably cause great theory at all here he die that was the guy who was the injury but that was the instruction to the jury the instruction of the jury said they could find either great bodily injury or death so they could find great bodily injury and i don't see any objection to including that the instruction well if that was the instruction then i think that was yeah yeah and i don't recall i'm assuming it was that alone is not right under the facts of this case because the facts of this case and the only supporting evidence that came from the coroner is that these two shots contributed to death there was no testimony about great bodily inequivalent i mean how do you cause death without causing great bodily injury i mean there was that but there was absolutely not the theory presented in this case it was i consider it pretty and i don't even know how you could say that though the theory was there were two shots one could have maybe killed him on its own and the other one injured him at least and that is the theory how do you mean it's not the theory the theory was one hundred percent that these bullets were the cause of death not that they were the cause of great bodily injury they were the cause of death and that was what the defendants were on notice about and that is what they defended against what i thought the theory was we don't know which one of them shot but under california law it doesn't matter they both shot and he ended up dead there were two bullets and california law says in that situation you can convict well i think i've said what i can about that i don't think it would be i don't think that that was a fair notice that the defendants were on at the time was clear this was being put in to prove death was caused by it so but i want to move on from there if you'll allow me to  go to the point which is that on the murder conviction the court found harmless error based on this proximate cause instruction that is based on this and finding that that the defendant personally and intentionally discharged a firearm causing death because it was a murder conviction that it was being reviewed so it was i analyzed in terms of was there evidence that's what the court of appeal looked at was the sufficient so what i'm saying is in terms of the proximate cause ation the failure to instruct on substantial factor and but for that instruction does speak in terms of it causing death that the jury must that they were told us had them and told us they would have been told they must find that each one of those shots was a substantial factor alone and each one of those shots but for that shot the victim would be a lie today so that's where the court found harmless error i'm saying that's wrong because because they weren't advised that they with two shots two shooters one fatal one not and given the testimony  corner which was that it was a superficial the other superficial small asked now the other gunshot wound that being the one to the shoulder was more superficial is that right yes maybe in a generic it was a flesh wound all right and that in and of itself probably would not have caused the death that's correct no because the jury wasn't told about but for in substantial factor this is very critical evidence that could have led them to say we can't say that that wound was a substantial factor and but  for that wound the victim would be alive today they just can't say that so to rely on them to establish harmless error on the second degree murder conviction was unreasonable clarify that at the reporter's transcript one sixty eight it's referred to throughout this testimony is wound number four we're number four entered the upper right shoulder area and traveled through muscle so it's well number four that is under discussion during this portion of the cross examination and this part i'm now on page one seventy of the report is transcript the examination has gone between the bullet that nick the aorta and the bullet that went through the muscle so when they refer to the other wound the first question up here is the big one that went through the aorta that in a number itself would have caused death yes and the other entrance entrance wounds not grazing room entrance wound was more superficial is that right yes it was a flesh wound all right and that itself probably would not have caused the death that's correct yeah ok thank you i think i better i'm going to really short of time here so it really goes fast when you're having a good time question so why so i'm looking at people the bland in the proximate cause instruction and it says great bodily injury or death is the instruction the twelve to two point five three instruction i'm a little confused about why where you were quoting when you said it had to be about death and not great but well i'm saying that the that the concurrent cause instruction that i'm talking about the substantial and the but for the argue the whole argument from the prosecutor the whole state of the evidence in this case was that these two together caused death but i mean your argument is that they should have gotten an additional instruction on proximate cause and i'm wondering to differentiate fact thing you quoted and how do we know it wouldn't i mean  we're in the hypothetical world how do we know it wouldn't include a great bodily injury i mean because the whole state of the case was death so they were going to look if i understand your argument correct me if i'm wrong your argument is that even though the instruction permitted the alternative of great bodily injury neither side argued that possibility so the jury i very unlikely that when they were considering it against the background of the argument of counsel that they would have focused on that alternative even though it was theoretically presented do i have the right such a well i mean i guess that's a fair representation i would like to maybe when i sit back down a look at the charging document to see if the enhancement was charged as causal yeah i assure you it was charged including both alternatives but i just want to make sure that i understand your argument as to why we should not consider great bodily injury that i'm right that it was charged i think only one harm was alleged here and that was death and that it should all be viewed in that sense let's hear from concerning the misstatement of the provocation stand there during closing argument on the first on the first issue i'll try to avoid the areas that have already been addressed by counsel i do want to say in response to i actually agree that it certainly summarizes my my response to jack's rylance question even those instructor i did look it up the instruction did say that or great bodily injury the fact of the matter is the case was argued on enhancement question based on the decile chart of so that's why seeing proxima condition instructions are critical both proximate position and the concurrent position structures were critical but given that the actual instruction given had injury and death and we were imagining a world in which they would have also given approximate cause instruction which in a typical form it seems according to bland includes injury and death is there any reason for us to assume they wouldn't include injury and death in the proximate cause instruction well i think first of all i think the instructor injury or death ok by an injury or death but both are included in the instruction i would submit that based on how this case was argued that inclusion of those instructions would not out there at that particular aspect of the case i think it would have been the same identified two possible concurrent causes that cause death and although he said both of forces contributed to you also said that one of them was so devastating that  deaths and i think sort of the take away from this is that the jury had room to find was a correct proximate cause in concurrence or because instructions it had room to find that whoever fire the shot that was less devastating was only in steps that causes the california law the fison and for that reason that element wouldn't have been proven if your argument that if the proper instructions had been given either defendant could be convicted well  i think easier defendant would have an argument that whoever filed the second shot would not have had then has been at it now has a jury decides that you know there's no way to decide it right and hasn't california implant in other cases the california courts have said over more than once that when you don't know who shot and there are two shooters even if only one bullet goes and you can convict both people i don't think it quite says that you are i think it's generally like you described but  only works assuming the contributing cause this means the definition of substantial factor and given how the expert described the second shot i seems there is room for the jury to say that this is a superficial shot that went through the muscle didn't hit a major organs by itself would have been survivable likely that's not a substantial factor and it's only an insubstantial the core also use of force theoretically i don't think that quite fits here but i think it could be reasonably f by the jury as being insubstantial can i just get a clarification sure which so let's say that you're right on that and i think from the medical evidence seems like you are so one one shot clearly non fatal the other shot clearly fatal that's what you're saying is the law well it depends on what the jury finds that's true question i'm just giving you a hypothetical set of facts there's no dispute over the facts both defendants each fire a single shot one is clearly fatal the other is not right just like  just like in this case and there is no way the government can see we have no way of identifying which defendant part which you say that in that scenario both defendants get acquitted i think it's a possibility i thought that's what i guess i think when i was exactly to the country that both court case it's quoting a case called people be coal and it says we think it is obvious that an individual can and often does proximately caused injury without personally inflicting that injury this is the california supreme court talking about california law i can you cite some iteration of what a substantial factor test is in the criminal case maybe you are if you could please maybe repeat your question again maybe i'm misreading and i want to make sure i answer i think this is a sentence from bland i think there are other examples too but one is we think it is obvious that an individual can and often does proximately caused injury without personally inflicting that injury well i would i would think that in the context of twelve will to do  different question mine's no i don't think so i just think i understand what you're relying on in california law to give a different answer well yes make and get my concerns maybe i'm not understanding your arse question i make sure that i do is a cor asking me was or not you can be convicted of this in handsome and was out personally firing you know without personally injuring so you can fire two people fire one bullet hits if we don't know who fired the one that hit if they both are firing at the victim one hits he dies or is just injured my understanding of california law is both people can be convicted now you can say that doesn't make sense in california law should be different but i don't see any case in california that says otherwise i guess i'll have two responses to proximately cause death and then they go on to explain that proximately cause death does not mean that your bullet has to have even hit the person well yes you're at and this set of facts i'm a little uncertain as  let's assume that you can only cause a superficial wound or even if you should in the air let's say the second shot kills him how would you be approximate cause i mean we could ask the california supreme court that but i don't understand how else you can read bland i just  questions about that instruction book you know if they were giving it the kind of interpretation yoof hypothesis hypothesized elise one member of the jury would have said proximately caused it and you know again you know i'm sort of imagine what the discussion the jury room might have been but i think that's just as plausible as any other scenario they had a very broad view of it and the facts from a commonsense perspective close enough one by itself would have probably killed them or a second probably wouldn't have the jury isn't required to accept the experts opinion in they can accept none of it they can accept part of it it's all chemically fact question for the jury and but i mean why would we reject the state courts because it's for two reasons one and it's a selective reading of the record because it emits what i think is a crucial portion and number two i think my my client did disputed he did argue that he wasn't he he did address the issue of closing argument now he didn't put on medical evidence but i don't think that that's equivalent of saying this is undisputed again it's a factual issue for the jury the experts testimony show only helpful but it's not like for an expert says x the jury must accept x he can he can reasonably argue for reasonable doubt based on numerous factual contradictions in this case and the equal cation in expert testimony i think that's a reasonable strategy and i would encourage a court no accept that as undisputed evidence of causation you said you wanted to cover a different issue and to save two minutes do you want to spend a minute on the other issue if i could please go to my point on the involuntary manslaughter improper lead i don't think it broke new ground i think it clarified that under california law that's improper argument because provocation standard for voluntary missler is different so i don't insist that either case broke new ground and i mean course of last decade i feel lot of it's already in the briefs wow and may please the court there's really nothing manslaughter about how this record and especially viewed through the deference lens of ed there's nothing unreasonable about the findings made by the court of appeal in some great detail in the written findings we also have the fact that the petition for review was denied by the california supreme court and under the sort of the new harrington versus richter standard we are not required to just look back at what the california court of appeal did under else versus newmaker but we absolutely do but i just want to make the point the findings in the state law court were under the watson test when it was not federal air it was under chapman and when it was federal air and or they found error sometimes and you know under any test record but indeed they did and starting with the statement of facts which is which covers the the even the conflicts in the evidence they were clearly  aware of the entire record and it's a very important point that the the expert who dealt with all of the wounds the to the left back to the right back there was indeed an additional wound which they thought may have been caused by the bullet exited the body is certainly wasn't caused by the wound where the bullet still remained in her body  t the shots to the left back and the right back were both contributing factors of death and to answer the court's question you know sort of how do you cause death or injury without actually hitting the victim when one takes a shot at at the victim encourages the other to take a shot at the victim there's some sort of a support when you're acting in concert i think that's part of what bland is getting to but everywhere from there where only one of them actually connects a bullet to the body to our present case where we have really quite a lot of evidence from dozens of witnesses really  that that each hit the body that stroman said to barnard get him that stroman fired that the body reacted to that first shot and that stroman then fired and the body reacted again and that he was dead by the time he got around the corner well there's a lot of conflicting testimony on that so if it really required the jury to find that both defendants hit the victim i think you'd have a bigger uphill battle than my understanding of california law is i mean are you have resting on the idea that the jury instruction that they were not given was the proximate cause instruction that instruction that would it had also come out of this same pattern instruction would certainly have involved causing injury or death and the concept of cause that the jury had before it without a proximate cause instruction the courts reasonably have found up to this point that the jury thinking cause would think actually caused and that a proximate cause instruction which you know would have sort of incorporated the goldberg process is that ken can sometimes intervene between an action then a result that that would have actually broadened their understanding of cause and that on this sort of intuitive cause theory what they found was was most likely that that each each shot each was fired shot that was a contributing factor to the death  but but that that's that's why it's harmless to not have mentioned proximate cause in this in this situation and we contrasted the bland case with the richards case in the richard's case you do have this you know these these gaps filled you need proximate cause to reign in a jury in this case that would have set the jury free in your mind me the evidence at trial did it establish two bullets that struck the victim that they were fired from separate weapons or was  able to that cannot be determined and could not be determined although yes different kinds of weapons were were placed in the hands of the victims by i knew who was in the car when the weapons weapons were distributed so just forget if you fire within ten and we don't know which which one was the better shot basically both are responsible because if they've acted in concert and they have both acted with intent ok and is that does that carry over then to this  you do need a causation fund or is it is a different that at that point so that you're dealing with two different statutes here the proximate cause arises only but if they did not make a finding they might not i mean if they did not make a finding that each contributed to the death they were they they would have acquitted on that handsome and i guess that's the the issue  that the structure of proximate cause does correctly define proximate cause of action twelve zero two point five three requires that the defendant intentionally and personally just charge a firearm but only that he proximate cause great bodily injury or death the jury properly instructed reason we found that the defendant did personally discharge a firearm the statute states nothing else the defendant must personally do proximately causing and personally for the harm are two different things correct isn't that the answer to ever is there something yes i know that i think that answers the  question are there other cases in california like that too i mean this idea that two people can do the thing in california lets you blame them both well sure so we have a whole series of cases where one person is is kicked once once by each member of the gang standing around them and you don't know which can was was you know the final fatal can't but everybody contributed to the death and everybody is equally guilty of  when two people are acting in concert they both intend the result it doesn't matter whose name is better if that's the if that's sort of a helpful way of viewing it i mean that's that's the way it's usually analyzed what about the provocation to discussions prosecutors closing argument so the prosecutor was just you know sort of giving an example he wasn't giving the definition of manslaughter but wasn't  charge hundred pounds less than the individual and i have a weapon that i can neutral i can stop the crime but it's going to cause i'm going to have to inflict a fatal blow to do that and that's the only there's no other alternative where i can go in and  passion i've just come upon a horrible crime that i'm feel compelled to stop and i my actions are justified it seems to me in that scenario it's not a question of the killing was awful but we're going to mitigate it t each case is determined on its facts each case is charged on its facts and we have we have suddenly imbue this very short example with a lot of specifics that were actually in the example  and do you have any case from any state that upheld a manslaughter conviction for killing someone who was in the process of raping a child i do not have one it at hand here are now so it's not a very good example  about finding your wife in bed with another man right but in this whatever feminist era i think he was trying to trying to come up with some other example than the cliche and it wasn't a great job but nobody objected people moved on the argument ended and the court determined that it would not reopen argument to debate you know a manslaughter example that was just given as you know this is different from what we're dealing with here that then got back to what we're dealing with here the in holding that that was on timely it can you point to other california cases that have treated such a situation as untimely when you object in the next break so that's almost not the point here because california appellate and supreme court ha reviewed this and not overturned it and so california rulings on this topic are a to entitled to the deference of this court and so you're saying we have to understand california law to treat the incident as manslaughter because of the way they handled is that what you're saying not necessarily your honor even if it was you know not a great example the point was was not to  to instruct on manslaughter just to say that what we're dealing with here is is murder and to focus the jury back on murder after they had been led astray by the arguments of defense counsel it was error correction in the moment and maybe it was not a beautiful thing but the courts of california who have reviewed this case have found it was it was just it was it was an example was it was a correction of an even worse description of manslaughter by the but when you say we have to agree or listen or defer or something are you saying that what we're deferring to is their description that that was you saying we have to defer to their finding that it was not prosecutorial misconduct which read a federal question so you're saying we have a difference but we don't have to just take it and they're still look we can still say it's on reserve all right i mean i'm not sure what you're saying if counsel has stated the law differently from anything i say it's my instructions you must follow is that that was absolutely given as you can every californian so so and since there was no reason assume in varner favor the jury had about which defendant fired which of two shots that killed ogden the undisputed testimony was that of internal hemorrhage from multiple gunshot wounds and that even the less serious of the to pass through ogden's body and contribute to him dying is it correct that was undisputed i don't think you'd need to this idea is that it's not a contradiction of each contributed to the but blood loss and contributed to death to say that  one of the wounds alone would not have caused the death if he had been treated you know immediately if the contradiction between both wo contributed to it was you know his multiple gunshot wounds that killed him it's that it is basically an contradicted on this record that both wounds contributed to the death even if one of them alone would have been survivable with immediate attention he right i mean he was even if he was slowed by one and killed by the other or was in the process of dying from one and was then shot again and both contributed to the blood loss that that cause not only cause but also and tiredly commenting on bland here and the questions you had i would refer you to the excerpts of record sixty five sixty six the court of appeal ruling which first the court of appeal found error under bland for the failure to give those additional proximate cause instructions and then it said the jury was never instructed on the meaning of proximate cause and had no reason to think  appellant could have proximately cause the death there's no reason to think on the evidence and presentation in this case that the jury understood that section twelve zero twenty two point five three could require anything less than get this instruction you know i think that was completely twisted thinking on the part of the court of appeal when you look at what the actual instruction is it depends essentially on an aiding and abetting theory what you're talking about and bland this jury got a completely wrong eighty nine abedin instruction that said the two were equally liable for the higher wrong and our position has always been that all this error on proximate cause given the additional instructional error on aiding and abetting mr varner was entitled to have the jury decide these questions that's really the issue here the jury decided both intentionally shot right now the jury found the enhancement yes so in order to find that they found that both people intentionally shot you know that's what the rent to own wires i'm sorry yes the intentional shooting but not what caused the death and as to that the missing instruction would have told them substantial factor in but for so he never had the chance to have the jury decide those based on these permutations of the coroner's testimony and all of it was infected by that really bad really wrong aiding and abetting instruction that they got that's how you would get to what you're talking about implant that everyone's responsible if they're part of it so thank you thank you appreciate your argument two minutes for you as well s i have three brief points first on the voluntary manslaughter argument not only was the example i think it was it was justifiable homicide i urge a court to look at the entire argument excerpts of record six seventy four to six seventy aside from that example the prosecutor also said that it's not voluntary manslaughter because a reasonable response to kill again that's an exact that's clearly incorrect under california law and again there had been published the stories and it's incorrect in fact subsequent to the california supreme court said that it's incorrect so that argument is clearly improper on things there was in your room to read it anyway as a reason it's overstated the provocation standard and reduce the prosecution's burden of proof now my second point would be mr rivlin mentioned that there was nothing voluntary manslaughter a buy this case and i respectfully disagree with that what you had here was a situation where my client had an argument with his ex girlfriend who he dated for a he doesn't just say all guys cut it out he actually aggressively violently interferes in it he may also have been flirting was the ex girlfriend saying she said that he may have been saying that so if you and i under california law you have to look at provocation by looking at the same facts in the phantom was in your own look at his specific subjective proclivities but you have to take the facts as they were actually done and given those facts i think the jury could quite reasonably find that an ordinary person sub or person in that situation would have acted rationally from passion not and was our judgment deliberation that is all the california law requires for voluntary man know under california law absent justifiable homicide killings never reasonable response that's not the standard and one sentence if i could the as for two yards hypothetical about causation i think as phrased i would say