morning everyone short this morning and i love it because i'm sure good morning your honor it may please the court today representing jose anthony produce though and i'd like to reserve two minutes of my time for about oh i'd also like to apologize for any coffee i'm still getting over being out there going around you have you've dropped the evidence three insufficiency but you're focusing on the prosecutorial misconduct correct ye ok go forth mr produced goes entire defense was not that he was innocent but it was that he was not guilty of murder he offered the jury a third option voluntary manslaughter but the prosecutor shamed the jury into believing that they had no option between murder and acquittal the government called this in artful and even improper and the california court of appeals said it was not logical all of which is to say everyone agrees that this was wrong yet this the california court of appeals never reached the constitutional federal question which was predicated essentially on prejudice the federal standard for misconduct is essentially predicated on prejudice and here because of this and because the california court of appeals never reached that question of district court for example that that there was intimidation to the jury that witnesses to really zero and see us were telling the truth and also that the jury the defense that that the defense theory was not credible both weren't raised in front of the just records so how can you raise them for the first time here well mr produced there was per se in the district court and we usually construe pro se petitions liberally and he did allege that but that doesn't mean that you can just raise bit different there a prosecutor no prosecutor if you're always going to argue the credibility of the witnesses the prosecutor didn't say i know something about these people that therefore should make you believe them that's not in front of you the prosecution to what the facts of the case are to support why those witnesses would be telling the truth that's not prosecutorial misconduct in that the final narrative that was the last thing the jury heard he indicated that in order to disbelieve those witnesses that the jury would have to find that they were somehow coconspirators and that there was some giant conspiracy going on in effect giving a juror or lay person the implication that he knows something that they don't that there are some that there was no kind of conspiracy that they couldn't disbelieve those witnesses for other reasons simply because they individually didn't find their testimony or their prior their impeachment testimony credible ok i think what it should go down to the argument that i mean the prosecutor obviously basically i've heard this in other situations that it's not disputed that the jury did get the voluntary manslaughter the jury was correctly instructed and the lesser included offense was put before the jury who act so but what  essentially the prosecutor did was sad if this isn't first degree murder then i don't know what it is and be my guest and but if you know if you want to find him guilty of this is the heat of passion you've got the instructions there if you want to find that just let him walk which why wasn't that kind of a gift to your client i mean give him say i'm like if you don't find first degree murder why don't walk because that wasn't his argument mr verdugo wasn't asking for acquittal he was asking for voluntary manslaughter his entire defense was that i'm not innocent i'm not saying you got to walk me i'm not saying you got to set me free i understand that something happened here that was wrong my only argument is that i was so provoked over months of being lied t months of being made to feel like i was crazy for believing that this is fair was going on that i acted in that heat of passion and by giving the jury the impression that anything less than murder was acquittal the prosecutor effectively eliminated that third law supports that there is state case law that says that they believe it to be more protective and yet none of those cases have ever found that it is more protective and the state standard is separated into two parts the second part this court has already found is the  equivalent sorry of the federal constitutional standard whereas the first part is it and the california court of appeals only reached that first part and there is and i think this case is an example of that reasons to believe that calling conduct reprehensible or deceptive is actually actually reaches and narrower subset of conduct than anything that is wrong that may you know deprive a defendant of their due process rights and so by virtue of california narrowing the conduct that they can even look to prejudice for to deceptive or reprehensible conduct arguably conduct that requires somewhat more intentionality behind it than simply just being wrong which the prosecutor was here those arguments were wrong if we disagree with you and fine but we're on a review do you lose honor and so you know i would argue that this court should either reached an overview because this was not an adjudication on the merits or because they never reached the federal constitutional question or if the this court believes that it is that they did reach that question it was adjudicated on the merits i believe under de one which says you know it unreasonable application of federal law is one where a california court of appeals can cite to the federal standard but misapplies it to the facts of the case and in this case the california court of appeals cited the federal standard notice that it was different from the state standard and then went on state law ground still civically so arguably again they didn't adjudicate on the federal question on the merits but also they didn't apply the federal federal law and to the facts of this case again their their entire holding was premised on california law which reaches a much narrower subset of prosecutorial misconduct than the federal standard would just make this is probably another way of repeating  in artful way of saying this is not manslaughter this is first degree murder except that they didn't argue simply based on the evidence that this wasn't manslaughter that final you know soliloquy i guess i would call it that the prosecutor gave which is the last thing that jury was left with was basically telling them how can you face your families if you if you you know a do you find them convict him on voluntary manslaughter how could you how could you possibly face your families with that i mean it's where the shaming and it's relying on inappropriate consideration was the record appeals it has to be so outrageous i don't know what the word is that you're saying that california's second prong is more restrictive than the darden wainwright ye disco was guilty of premeditated first degree murder nothing less when they sense based on the other sense and nothing less would properly account for the culpability in this case as the district court here explained this is proper argument my friend of their side has essentially conceded that if at the review applies mr produce goal loses so i'll start with that whenever the state court is presented with a federal claim it is presumed that in denying relief on that claim or in relief on that issue that they have applied federal law and they have adjudicated a case on the merits here we don't have to rely on the bare presumption because at the outset of its analysis the state court explained that it was applying federal law by announcing correctly and clearly the federal law standard on top of that the court then went on to adjudicate the issue under not really specifically outline a state law standard although using some of the terms from state law but  state law is more protective and on this area as the california supreme court said in people view the must conduct that falls falls short quote fall short of the federal standard may still violate state law the california supreme court is the final arbiter of what federal of what state law means and so when it says that its standard is more protective we should we should agree we should believe it on top of that even if you were to disregard all of that the court found that this conduct was less than a lot of ball under no circumstance could less than a lot of bull really rise to the level of the federal standard the federal standard again is that the conduct is such that it so infects the trial forfeited here however this court if it wished to address it could deny it under section twenty two five four b two ultimately if i were in the course position i would say that the claims were an exhaust that they were forfeited but in the event we would deny them on the merits double barrel it as the saying goes so was the jury and five the jury was given the correct voluntary manslaughter and that's not and and there is no way that it goes it says if you find the defendant not guilty of the others then you look at this and then you're told voluntary manslaughter was the jury also instructed that the statements of counsel are not evidence and that you as jurors are the s determinant chairman of you determine what the evidence is and it's what comes from the witness stand and all of that absolutely or another do that that the judge right after arguments actually usually instruction sometimes come before hand right after arguments ended that's when the judge actually instructed and said that the law is as the judge explained it and the facts were as the jury would determine it all the practice sections were given this case in fact the prosecutor no less than a dozen times told the jury himself to follow the law follow the facts this is premeditated murder is polygamist pulls his mate says the context in which this remark was made in the end didn't  i guess deemphasized what she says was constant months of lying if i can paraphrase what she said i guess that's another way of saying it was inflammatory so no matter the characterization by a review in court it's less than a lot of bull isn't that a denial of due process if in fact the context of the argument makes it so the jury ignores the facts i think that's your argument there could be a situation where the prosecutor tells the the jury to disregard the fact to disregard the law in its particular type of of yet claim and then that coupled with a situation where perhaps they were instructed on correct weren't told of the lesser included offenses they were to consider coupled with a weak case of evidence where there was maybe a debate about whether or not this could be voluntary manslaughter all of that combined might be a case where this would be a process we have none of that here i would take a situation like in berger were just as so and said the prosecutor is not entitled to strike fall blows is that right correct or honor his mates position is this was a fall below no foul blow in this case your honor if you if you review the transcript towards the end what the prosecutor was doing was right after just discussing abiding conviction he simply gave the the jury something to consider when you leave this court room here's two scenarios one addressing the evidence you found this person guilty of murder that's the obvious one that's what's here another one where you found something less despite the fact that there was no evidence to support it here we have and in doing that this that he simply  and it was a little insulting in the sense that it was sort of like well if you think that this is not murder then good luck just go out there and be around people i mean i've seen the same you know if you think that looking at someone in the other car can be justification to shoot them you know then then good luck and i give up you know i've president of the case there's tons of evidence and if you don't think that it makes it just let them walk i don't see in your backyard essentially if you're very upset and you've been lied to for several months you essentially have the right to murder someone and that's just voluntary manslaughter in the in the words of the defense counsel that's all it is well  wrong he was you know the husband that he has the wife that had an affair with the person that kind of in the same circle and you know that he was clearly wrong and she continued to lie about it and and was playing unfair if this is ever happened to you you know how upsetting this would be and that essentially could last forever and he was responding to well he did passions a little bit different than when you take a gun to  an unarmed and then i think there was also evidence in the record that was allowed that mr produce go not that the victim was an abusive husband so that all came then right that afraid of the victim then he could use self defense of course that's not the issue here anymore but it was an issue that was presented at trial but just to be clear the evidence here was so clear argue for an acquittal am voluntary manslaughter or did he just argue for voluntary manslaughter i think counsel for the appellant said he was only arguing for voluntary manslaughter argue for voluntary manslaughter although self defense both imperfect which would also be voluntary manslaughter and pure self defense were also given as instructions in this case so the jury could have concluded could have that evidence that evidence that he was well i know but i'm just wondering the analysis and so because how for the opponent said he was only arguing for voluntary manslaughter but the jury was instructed as to complaint self defense imperfect self defense and heat of passion or they also argue for self defense i think imperfect self defense was the focus but both were presented to the jury and the defense counsel argued imperfect self defense as well well but did they argue complete i don't recall that that was the focus of the argument but i guess you still have to get beyond a reasonable doubt could he have been found not guilty completely yes your honor because the jury was also instructed on all those things as well so even if the prosecutor argument or the defense's argument didn't ok i didn't rely on that it necessarily included that i just want to point out that the confusion the point i was to make earlier was that just being upset doesn't give rise to heat of passion human passion can't be sustained over  months he'd have passion is when in an instant you're so overcome with rage that your reason is overtaken and you can't be blamed essentially you can't you know there's no law that says it has to be a minute i mean well there is a quick given those instructions a long time could be it could be exacerbated every single day it could be or if there were a precipitating event however he had time to plan this and calculate this he spent months the day before he calmly ok arguing the case again we're arguing the legal issues so i get that if i can just say your honor the only reason why that's relevant and i would never just argue the case just argue the case is because in the context of the minor lack of lot of the comments made by the prosecutor in the way to get to the evidence the evidence is important to consider because that helps as a term and whether or not those comments were such that they could so in fact the trial as a way to get the evidence it cannot be the case three of the cases you're saying relative to the comments yes  significant admission yes so i'd definitely like to correct that record i do believe that if he can satisfy do one which he does because this was a misapplication of federal law then this court can still get to do novo review that way but again my central premise is that at the shouldn't apply because this was not an adjudication of the merits of the federal question so you said you only argued voluntary manslaughter yes you're right was the jury instructed as to self defense imperfect self defense and heat of passion i recall instructions are imperfect self defense and imperfect and sorry and heat of passion i don't recall if there was a complete self defense instruction but i do recall the closing arguments where it was argued they were imperfect self defense and heat of passion were the two main arguments case was that they were arguing entirely for voluntary manslaughter there was there was no there there were not requesting that he they they walk him or that they acquit him and so your honor and you know it's not a response or it was still an improper rebuttal to call just because you defend this attorney is arguing for voluntary manslaughter it's still improper not for a prosecutor to come up and say it's a nothing charge and to ask the jury to to face their families afterwards with having you know convicted on a nothing charge you know you can argue that voluntary manslaughter is insufficient based on the facts but you can't just denigrate the entire possibility of that charge i think this was clearly improper and it did happen before defense counsel it was argument in the in the beginning the prosecutor got up and said this is all or nothing this is all or nothing still essentially saying you either have murder or quit there's no voluntary manslaughter and then compounded that and i think very