court my name is clark cause hearing on behalf of andrew hernandez i'd like to reserve a couple of minutes for you are correct your honor i thought the law student did an excellent job summarizing the law regarding cruel and unusual punishment so i will not for the court with that another rendition i would like to focus on andrew hernandez specifically and distinguish mr hernandez this case from cases like possession of cocaine of less than a frank and that is exactly the crime that mr hernandez committed anderson and this is thirty two years old now he will spend the rest of his life in prison because he fell asleep on the sidewalk with a crack pipe and i do not defend this as an upstanding citizen conduct i do believe the court has to appreciate the fact that in the into cars down the freeway may threaten people falling asleep on a sidewalk with a crack pipe doesn't really threaten anyone it is virtually identical to the circumstances of europe where judge less forder strike was let out of jail for credit for time served the district attorney of los angeles to not appeal that case and in a discussion after the case of the circumstances the district attorney of los angeles ironically said that today people are arrested for possession of facts amount of cocaine would never be charged with a third strike case under the current circumstances in l a county so when you talk about proportionality if mr hernandez had fallen asleep yesterday in the streets of los angeles he wouldn't be spending the rest of his life in jail help me understand why you're saying that he fell asleep with a crack pipe in his pocket when the officers testimony that they arrested him for having dropped a piece of paper and then upon questioning him they they spotted i think coming out of his pocket he had them shows them  which was part of the brief issues regarding the issue of the ambulance and then the statements by the district attorney regarding which ambulance showed up and when i wasn't on the right mr hernandez has a vastly different view of the un certified issues i believe this court in in many cases that specifically and they have you have a local rule on it allows the briefing of uncertified issues which effectively means that you consider that i'm not suggesting to you that this issue was certified by the district court it was not we followed the local rule of the noting the answer to fight issue in our brief regarding the issue of cruel and unusual punishment i can see that absolutely in a certain your view then of the rule of that step serves as a request for certification that's right it is fundamentally a request for two things  effectively certifies is that issue and then of course reach it on america the the distinctions i want to draw between mr hernandez case and other cases i think is important the the proportionality analysis that this court requires requires consideration of what i call the target or triggering offense in this case possession of a controlled substance of less than a gram mr hernandez would serve somewhere between sixteen months and thirty six months for such a crime prior to proposition thirty six of course if he fell within the rule of proposition thirty six he would be granted immediate probation unusual punishment issue that that comparative analysis is crucial how are similarly treated people treated today or in any other time mr hernandez also i think i california it is not to warehouse people who didn't get a good education under the school system and yet those were the factors that were specifically referenced by the trial court and again by the court of appeal as under three strikes as the trial judge under those circumstances and then conducted what is called the romero hearing and the romero hearing is is the attempt by mr hernandez to effectively strike a strike and court introduced evidence from his employer for example who came in and said you know he has a troubled life but he always shows up and i hire him again and he had a couple of relatives come in and say he's had to grow up in a strikes which effectively for that purpose for that day then would put mr hernandez in what i call inc to strike time text which would then mean that the court would double the of the charge for the offense he he was found guilty of sort so for example if he had struck one of mr hernandez's priors then he would have looked at the cocaine possession he would have said ok sixteen months to three years doubled whatever he decided so mr hernandez would have spent somewhere between three and five years in a day when one final question and actually looking at the issues that were certified i looked back to the record and i tried to find transcripts of the trial in which we ha the testimony was written but i couldn't find them work were those transcripts ever typed were they lodged in the in the district court yet the so so i should be able to find those baskets in the district court record you should be able to and  and the closing argument which was the focus of those issues we quoted the district attorney's statement in effect even the court of appeal agreed with the district attorney's statements were unwarranted given the facts but simply decided that they correct that's right he he had a two burglary convictions those were his prior strikes the most serious crime he ever committed though it's not a strike was excellent in possession but it didn't fifteen that's right for fifty nine residential no no people were involved they were all at the time not the residents weren't there my understanding i think under the current district attorney's policies i think i think the new crime would be he would charge new crime as a third strike if it itself would have qualif as a serious or violence strike in the first place and this crime would not have numbers if he had had three three possession offenses of this type i don't think they would have been serious and violent so i think it's true i mean short answer i think is yes it would not have been charged that not just it it's false statements it's also a combination of that with ineffective assistance of counsel that is also a brief issue of and i think it's important to take that into consideration given that mr hernande spending the rest of his life in prison and those factors obviously have to be elevated with respect to the both the district attorney's conduct and the defense counsel's defense of the matter again issue especially given that mr hernandez would be out of jail right now but for the circumstances of timing and nothing less i prefer at the time thank you very much thank you we think both counsel of the case or not