instructional issue and in particular to be unreasonable application aspect of the instructional issue as opposed to the contrary to prong and i will not address the jury's finding of at a minimum indifference to human life and major participation which as we say in the brief is a separate and independent grounds for affirming the california supreme court's finding is there so with that focus i charge ahead the issue for this court is whether the california supreme court was unreasonable  based on if you're a special circumstance finding that petitioner was engaged in robbery during the commission of a murder that the jury therefore necessarily decided that petitioner was engaged in a robbery before the killing of counsel before you get too far in a very issue we do have this question of exhaustion is the state waiving exhaustion defendant brought a claim of instructional error on the felony murder count finding of the california supreme court and i have not been able to find a case that says it's the college has or the petitioner has the burden in presenting his claim of presenting to the state's highest court all the relevant circumstances for the chapman analysis if we are now making a separate legal claim that the special circumstance is no good court well let me ask you this way has the supreme court of california had the opportunity to consider the finding need a judge will can when she had this front of her of course not but it had the opportunity to consider the instruction the special circumstance instruction and the totality of once you once you identify the instruction every conceivable challenge the instruction is presumably is presented to the state court is that your argument court properly did in this case whether another instruction a jury's finding other another instruction renders the first inadequate finding harmless and in doing that chapman analysis the court has to consider all the factual circumstances that bear on this other instruction including other instructions that the jury would see in light of that now with the defendant was playing hide the ball here and saying you know bringing something into the record that hadn't already been there or saying that there is something now in the record that is somehow you can't you are not allowed to consider because of x y or z that would be a different question so i feel like i'm taking time to argue i keep in mind which is how the united states supreme court has told us to interpret jury instructions or how to evaluate how jurors interpret jury instructions and they do so in a commonsense manner in light of everything that's taking place  or not somebody can feel the felony murder feeling facilitated by eating court doesn't answer the question so to my mind just looking at a commonsense approach we have a jury that was confused with at the very issue that's in front of us so it doesn't take much parsing for me to say well we have a problem in this case are effectively disagree the issue that is in front of us is not whether it was in felony murder instruction the issue in the first attack by the district court on the california supreme court's harmless finding is whether that error spilled over and contaminated the special circumstance find right now the special circumstances instruction set you the jury in order to determine special circumstance must decide whether the the murder was committed whil defendant was engaged in robbery the murder was committed while the friend it was a engage in rock was so that instruction by its very terms requires the jury to decide when the murder was committed and the california supreme court assumed that a felony murder a murder is committed when a felony murder is committed in the felony murder is committed there are improper instructions whenever a robbery is committed and for the entire duration of the robbery that is not a reasonable interpretation of how the jury is going to deal with why not because nothing in the special circumstance instructions or comments by the court or counsel ever sa that you could import the felony murder concept from the underlying crime into the special circumstance finding felony murder was never mentioned in the special circumstance conte not only was it never mentioned the instructions considered in context imply that you can't do this because the instructions just after you determine whether the defendant is guilty of murder then you go on to decide this contemporaneity problem for the special circumstance implication you have to make a separate and distinct finding and if they were the same you had to do just the same thing there's no need for this next instruction the prosecutor then made that very same implication when he said if this if you find that the defendant is the killer then the special when he said the only way that you can find the special circumstance under aiding and abetting is if you find that when the killing to occurred the defendant intended for it to occur that is the contemporary questions about any of the special circumstances and special circumstance instructions this jury was active in asking questions about everything else it just requires in the wording and speculation in view to import this felony murder mistake into the special circumstances determination second attack by the district court is this notion that one special circumstance instruction negated or nullified the other special circumstance instruction the first one eight point eight zero point one said contemporaneity you have to find that the murder  committed while the defendant was engaged in robbery and you also have to find either intent to kill or reckless indifference to human life second special circumstance instruction eight point one point one seven said contemporaneity or you have to find the murder was committed to carry out the robbery district courts theory the jury throws everything else out and focuses on that last and says the only thing that we have to do to find the contemporaneity thing is that last thing that says the murder was committed to carry out the robbery that it's not  requires the jury to believe that this previous instruction that it got is completely not only i'm necessary but completely wrong not only did the previous instructions say contempora that's problem number one problem number two you are going to jury is going to say i'm now going to find a special circumstance on this murder this is not just a film or it's a special circumstance murder why because of nothing that the defendant has done it is irrelevant what the defendant has done the only thing that matters is what the killer did killing doing the killing in order to carry out the robbery that's not a common sense interpretation and third the verdict form the verdict form says defendant was engaged in a robbery during the commission of the murder because the killer killing to carry out the robbery is a complete non sequitur it makes counsel never suggested any of this this is not a reasonable interpretation of how the jury was going to deal with the instructions i want to talk about the evidence as well but i've got thirty seconds to do it and i don't think i can do response to that letter and in spite of the court's friday order i'm not sure it has been distributed to the panel i think miller elvis's greggy directly answers answers the court's question i know the course very familiar with  and cases and the court knows that the juror comparisons and the prosecution's disparate questioning of white and black jurors was vital to the supreme court's ultimate finding discriminatory intent behind the preference the there was no discussion in the bachchan arguments in the texas course excuse me juror comparisons and disparate question mortier transcript was before that the texas courts in considering those claims and petitioner was entitle to discuss is here about that evidence in presenting a claim in federal court now this the reason this had not been discussed earlier up to the decision of the california supreme court was that that particular harmless error theory the emphasis on the while language of the special circumstances instruction was not a store stated by the state attorney general as a ground for harmless error in the greeting before the california supreme court the attorney general relied only on the theory that he reckless indifference major partition of finding jurors there was no discussion of that sense in this which the california supreme court viewed as the significant the during language all that the district court did was taking the california supreme court's holding that the special circumstance instructions necessarily embraced a jury finding that the was involved in that was that was aiding in the robbery at the time of the killing the district court looked at those actual instructions and in the course of that recognized that in fact they did not necessarily resolve that finding so especially in light of miller and all as well as of the additional sites in the letter which i faxed yesterday and also file the hard copy i don't i don't think there's really any problem at all in exhaustion i do appreciate the finding a verdict as necessarily during an air when as judge as just book ins opinion reflects an actual analysis of the instructions so those that did not require this finding now turned general as has questioned why would the jurors had no reason to import the felony murder concept into the special circumstance instructions of course they did because the only definition of murder the jury had received in the case in chief was felony murder this jury was not instructed on premeditated murder it was not instructed on implied malice murder as to as far as the instructions that went to the murder wasn't murder was a felony murder so of course that's specially in light of all the questions on the relationship between robbery and murder and the duration of robbery and the if and robbery is in ewing through the exportation especially in light not only the instructions on that point but the jurors keen attention to those points of effect in their and their questions of course they are bringing that concept of what constitutes felony murder to their analysis of special circumstance and the reason i submit that after we had these many many questions that we don't have an additional round of questions on the special circumstance is that the jurors did not perceive any diverges the drainer out on the the questions to go beyond just reflecting that the jurors are interested in aiding and abetting because crankily aided in the right had been a participant in a robbery prior to the killing that he would be liable for felony murder the only explanation for the jurors repeated pleas for guidance is that they were trying to sort out what police those culpability would be if he testified his only role was assisting eragon after the killing and we know from their questions that that's what they were focused on we know because such as the the question was just thomas quoted a moment ago when the jurors asked does the knowledge of the main perpetrators intent have to be before or  during and right they are right there was the opportunity for the district court to say yes that you must have that you must have that intent before or during the killing but instead judge said we can answer there was also again a point i think very well analyzed in judge wilkins opinion the jurors submitted a diagram isn't it actually two guys grades one of them had two options diagram three had three options the third of which w this court in applying brett has to look at the whole record and it is compelling evidence that these jurors some of them at least were looking at the question of what if the if his role all occurred after the shots were fired because remember because of these defecting instructions he just left ultimately not having to make  finding that there was any assistance beforehand what i want to see your interpretation of the verdict form you heard counsel's argument with respect to that the as the verdict form the it is the instructions that prevail over the over the verdict form and clerical mistake in v verdict form on a firearm announcement referred to army with an enhancement which in california is actually a little a significantly lesser charge they and use of a firearm but all the instructions the jury had received were on use of a firearm and the california court said that it's the instructions to prevail so the verdict is deemed  finding of use and i think is especially true in a situation like this where the jury of jurors receipt all these pages of instructions on the special circumstance it's impossible to  all those pages in the heading of a verdict form and jurors jurors do apply common sense i will when he sees the miracle common sense because it is just a circumstances russian was picked up by any of yours but even if it was even if even of was we know that the body of the instructions did not make it compel them to make a finding and again that point is under something prior to the killing finding of some different role for police other than those two with essentially require the jurors to result to resort to extreme speculation and it's much that he did anything prior to that i submit that grave doubts and the district courts upon reviewing everything not just not just one sentence in a special circumstance instruction but all the special circumstance instructions all the state court to point to the special circumstances recalling everything grand instruction when the actual content of the special circumstance instructions do not require such finding it is and you certainly if you're just if you ever have the state court is going to focus exclusively on the jury's finding and some other hurting you certainly are looking at all the instructions be made with the confidence required by shock and now there's now that that is my argument as to the ground on which the california supreme court actually relied let me say something about the reckless indifference finding that there is no at the at the difference as to whether or not the major participants reckless indifference expecting the special circumstance necessarily resolve this far from rely on that ground the california supreme court essentially said well be that is it may it's the it's the wild language of the special circumstance that makes us confident that robbery during the commission of the of the of the murder so the california treatment of supreme court's treatment of whether the reckless indifference whether the whether the defense version of the facts  considered on the current record and resolved in the current record and it compliments the error raised in the direct appeal as we've been discussing the error in the in the in approaching across the appeal the court start with the vouching issue and assess its impact with the instructional are and then of course if it still is not convinced of the cumulative prejudice that it proceed to the earth in our view the brecht analysis here is if you believe that the district court was correct in saying the california supreme court was unreasonable in ruling out after killing involvement theory that the jury could have adopted if the california supreme court acted on reasonably in that respect then you this court still must weigh the evidence would have adopted or would have still believed in the possibility of this only post killing involvement and it's not enough for there to be substantial evidence  most importantly that the defendant was simply unknowingly along for the ride completely unaware sitting out in a car heard a gunshot ran in and then basically under duress was forced to participate that was the defense theory and theory was of search you can find that area gun was the killer you can believe that our gun was the killer and not come close to believing that iteration over that but if at least one and more it was the defendant's gun the defendant had his fingerprints all over the cash register the defendant knew where the bullets were hidden the bullets other bullets were in the defendant's car the defendant and aragon could have said to aiding and abetting although he disparaged it but i'm saying that much of the evidence powerfully indicated that this person was a co equal partner in this in this crime especially that fingerprint on the coke can the defendant had no explanation for that fingerprint on the coke cans in the store his explanation was i could have touched it at a previous visit the defense counsel himself disparaged this when he gets in closing arguments as i grant you that's not a very good explanation perhaps what happened was the defendant when he walked in after the killing so the theory goes happened to touch the coke can not a good explanation in view of the fact that where the defendant was was not where the coke can was but putting all that aside no explanation of how this coke can migrates from the refrigerator to the counter in the first place defense theory asked you to believe that it got there simply so th defendant could touch it so that he could have another unfortunate coincidence to have to explain the reason that is so important because it puts him in the store aiding and abetting this crime whether he was the killer or not he was at the get go and all the evidence points to his active involvement it's true he had explanations explanations were implausible in another themselves and when you know i don't your time has expired can start thank you very much to the case just argued will be submitted for decision in the court will a