good morning i'm julie lipsync appearing for appellant m petitioner anthony lamar dean and i'd like to reserve about three minutes for rebuttal if i my in this case the evidence was so weak that the prosecution was unable to prove either alternative theory of guilt to a unanimous jury we know this for two reasons the jury was hung as to whether mr dean used the firearm so they could not decide that he was the actual shooter they also sent out a note during deliberations stating that they thought there was a mandatory presumption that any person who was engaged in a robbery even if they weren't the shooter was guilty of first degree murder other than the evidence of robert dean a high school junior who gave very inconsistent statements and we now know his statement was false the remaining evidence that mr dean was the shooter consisted of uncorroborated admissions and circumstantial evidence showing only that  he was present at the scene of the crime during the robbery because california doesn't require unanimously on a theory of guilt it essentially lighten the prosecutor's burden of proof some of the jurors convicted mr dean as the shooter and some committed convicted him as an accomplice the misconduct committed by the prosecutor in this case coupled with the jurors confusion as to the theory of guilt for accompl of several different forms but underlying all of that was a bad faith failure to investigate the evidence suggesting that mr dean was not the shooter and instead that the the shooter was turtle tim jones because of their failure to investigate they proffered false evidence to the jury in the form of robert dean's statement that he had with an eye witness to the crime and we know this was false because of what happened at the subsequent trial of turtles him jones when the prosecutor got up and said we know robert dean was lying they presented evidence to show that he was three hundred feet away period through bushes in the dark and could not possibly have made out the identity of the shooter from his vantage point the prosecutor also vouched for robert dean's truthfulness at mr deane's trial and then at turtle tim's trial told the jury robert dean lied as to the exact same piece of information nothing changed with regard to robert dean's testimony between the two trials the prosecutor also told the jury at mr deane's trial that  taped confession by turtle tim jones had been intentionally withheld by defense counsel to prevent the prosecutor from testing that evidence when instead they failed to investigate they never tried to get an expert to test the evidence and instead decided to accuse the defense of shady tactics this court has hauled into you know the russian that the prosecution can't do that it's also held that the prosecution has an affirmative obligation to there's lots of ways in which the prosecutors argument misconduct about the prejudiced mr dean the tape was critical to the defense which was primarily that mr dean had no involvement in either the robbery or the murder the tape exonerated him because in his confession to the murder and robbery turtle tim didn't mention mr dean it also was best evidence that he was not the shooter so the prosecutor arguments about the defense withholding the tape and essentially falsifying evidence would have directly impacted that portion of the jury who base their conviction on the theory that mr dean was the shooter altered the story to try and say that turtle tim had admitted being the person who did the shooting as opposed to mr dean well when the prosecutor says i think what happened is this witness lied that's a voucher  with regard to the testimony of robert gene i touched on this already and this is perhaps the most egregious error prosecutor went forward with an eye witness that they either knew or should have known was lying you know the government faulted me for not proving that the prosecutor actually had conducted this experiment that proved he was lying before mr dean's trial well if they didn't conduct it then they absolutely should have because proffering it as the truth the prosecutor told the jury robert dean told the truth and without investigating they can't go forward on that and then at a subsequent trial say oh now we've investigated and now we know it's true but we just forgot to tell mr dean that or forgot to tell mr dean's attorney that excuse me now we know it's false which is what they told the juror jurors turtle tim's trial coupled with their valid shing and then they're inconsistent arguments at two trials that one piece of evidence was true and then it was false or one piece of evidence was false and then it was true something very fishy was going on in that stockton district attorney's office we can't exactly know what it is without robert dean's statements there was just no evidence that mr dean was the shooter because the other testimony that came in on that point was in the form of ignitions that mr dean purportedly me and under california law an uncorroborated admission cannot prove an element of the offen crime rates that he might have been afraid corroborates that he was guilty of something but certainly not of being the shooter there were people in the parking lot there were some people they didn't witness the crime but there were people who testified that they saw people in the parking lot and he might have been afraid that his his clothing would identify this being your by during this crime i don't see how that corroborates the elements of the offense it certainly corroborates you know that maybe he was guilty or maybe he was afraid of something seems pretty weak to corroborate guilt of murder of being the shooter in a murder and i did want to touch on the statements purported statements that he made that he was the shooter first of all there's only one witness who provided any information about that that was a crack cocaine addict lisandro owens who the prosecutor himself had to tell the jury was a total liar when he got up in an argument and she all she dean told her that initial love told her that mr dean told her she shot a man she also made a statement that she heard mr dean say he shot a man but it's only one witness and this witness was rigorously impeached so i think the evidence that he was the shooter was very slight the trial court at the end of the trial said he didn't think he was the shooter after hearing all of the evidence so and two of the jurors didn't think he was the shooter now the jurors who convicted on the aiding and abetting betting theory and we know there were two of them from the breakdown in the hung jury on the firearm and handsome and they would have been affected their verdicts were poisoned by this instructional problem the jury thought there was a mandatory presumption that all participants in a robbery are guilty of felony murder that's wrong under the law the trial court and fail to answer the jury's question the instructions and through the crown the instruct the jury is not was not instructed on this element of intent which the california supreme court has said the prosecutor bears the burden of prov in ruling on this issue on direct appeal the cal california court of appeal applied the wrong united states supreme court cases they did so their decision was contrary to federal law they didn't bach which deals with jurors confusion and when jurors have confusion about an issue the trial court has an affirmative obligation to make sure they understand the trial court just referred instructions none of which answered the jury's question and in fact the special circumstance instruction which arguably could have answered the jury's question might or might have demonstrated that the jurors did aider and abettor liability was incorrect the version of the instruction that the jurors were given told them that a defendant had to have the requisite intent not the defendant and the judge also instructed the jurors that turtle tim jones was by law an accomplice and therefore the jurors would might have to leave that any perpetrator any defendant having the requisite intent meant that all of the participants in the felony the robbery would have also had the requisite intent and i know it's a little confusing but i think the government is trying to use that confusion to their advantage again because the jury was not unanimous they didn't have to prove he fired the gun they didn't have to prove that he had the intent required for accomplice liability and by doing that which they're allowed to do under the law they deprived my client of due process and a fair trial  with regard to this instructional issue which i think is very very important in this case the law says that for a prosecutor to prove it or on a better liability for a felony murder he has to have prove that the defendant intended to commit a robbery prior to or during the murder the evidence of intent in this case was in the words of the government attorney in the district court extremely scant the only type of evidence was through the statement of d'antin reeves who recanted and said none of this ever happened when he got to court but the statement he made to the police was yeah they decided to rob him there's no they lose they it's very very big when that occurred when any of it occurred and  tens confessions that was played for the jury the tape of his confession he says i decided to rob him i took the money i shot him and i completely undercut any idea that mr dean was a part a major participant in any of the crimes let alone the shooter and there's no indication that he had the intent to necessary intent to meet the jury found that true so despite the prosecutor's argument that it was considerably more narrow in the jones trial it was still insufficient to convict badgery that mr jones was the shooter doesn't look like anybody ever result who was the shooter had justified the different positions taken by the prosecution these are the robert deans statement well it is correct that in the dean trial  the the state's position was that dean was telling the truth that he his initial statement was that he had seen the event go down and watched his cousin was anthony's because rex arched the flash from the muzzle of  the weapon nearly blow the victim's chest off and consistently in that trial the state's position was that statement was accurate then comes the follow on trial of turtle tim that the prosecution took such a three hundred sixty degree difference on the accuracy of the statements of robert reich i don't attempt to explain it or justify it i can't get into the minds of the respective prosecutors my position is simply that it's not an unconstitutional for a prosecutor to do that what the constitution requires is that the prosecution because in its case argue the inferences from the facts and disclose any exculpatory evidence to the defense and that's exactly what happened here there is nothing that constitutionally requires a prosecutor to select one view of the evidence and then adhere to that view for all time there's nothing in the constitution that prevents a prosecutor from changing their mind now turns out as i mentioned in footnote eleven in my brief these are two different prosecutors and i don't honestly know why the san joaquin it just turns off assigned to different prosecutors for these two cases it could be simply that they each have different views the evidence don't know that's speculation by everyone in this courtroom but the point is there is no constitutional error in a prosecutor changing its mind or changing its focus evaluating the new evidence and talking to the jury after the first trial and saying to you i never thought of it like that here's a jury that i argued really that mr dean was the shooter and then after talking with the jury they pointed out perspective on the case that i never saw any one of those things could have happened to explain why he in fact made the decision but the point is there's no constitutional eric there's nothing wrong with taking inconsistent positions in fact all that the constitution requires in this us supreme court has said this made it perfectly clear  packman for no thirty four they say any time you talk about a brady obligation that's really just the other side of the coin and can be reframed reframed as a claim of knowingly using perjured testimony or false evidence the evidence doesn't become false unless the prosecution has some other evidence that it withholds and says oh i know i'm now i know this evidence is false well if i disclose that evidence to the defense as i'm required to do under brady they have everything i have they can argue all of the inferences that they think flows from the evidence that may be counter to the inference is i'm arguing and that's what the adversarial system is all about here's the evidence here's what i think it means here's what my opponent thinks it means you the jury sort it out that's all the inconsistent position with respect to robert's statement i don't know specifically because i didn't handle that case of him by know that he but i believe it was and the reason i believe that is because there was when it when it got to the the question of the admission of the tape the tape recording one of the arguments that the defense in the jones case ultimately used to successfully keep the tape out was the inconsistent position so i from that i suspect that these gentlemen to buy him some beer he just got paid so they said we saw a lot of money in his wallet we went in to the liquor store to buy the business robert games just adlib and at that point they said well we're going to buy the beer and they decided the car and they all discussed this and that's how he found out but at some point later so that admitted later the evidence of the intent there is that later discussion too about the mining you know who gets the money but they talk about dividing and inviting up the money but i mean if anything i think that really explains the prosecutor  ever knows i don't think that robert dean's testimony was specific on that point as to whether there was any discussion in the store about the use of a gun what evidence was there that the defendant dean at that was that it was two instances of him being seen with a similar type of gun as the one alternately used but let me just back up so i think what your question is going to the issue in this case was not whether or not the sufficient evidence for the jury to find that he intended to use a gun that well that may have been similar to the elements needed for the personal use and handsome and but it wasn't necessary for the jury's verdict on the robbery and the corresponding felony murder all do right but what i'm saying is you can you can make all those findings with respect to the robbery the telling murder in the special circumstance without any particular finding about a gun you can find i don't know if he was the shooter or if he didn't hold the gun didn't know the gun was the all i know is that he intended to either do the robbery or aid in the commission of the robbery and if he wasn't the shooter then he either had intent to kill or made a participant in reckless disregard for human life now granted either  finding either intent to kill or reckless disregard would probably encompass some inference about what he knew about the gun i grant you but the language of the instruction does not technically require them to make any finding specific to the gun are no other questions also a minute you know i don't see any other sank you for your argument here rebuttal argument at this time counsel like to respond to a few things that opposing counsel said first of all the prosecution has more than a duty to just to school as evidence they have a duty to investigate evidence before they represent to the jury that it is the truth at the time of trial they knew that there were two possible shooters in this case total tim jones or anthony dean they chose not to investigate the truth of the allegations against turtle tim in fact it wasn't until the middle of the trial because the defense brought it up that they even check the evidence to see if turtle tim's fingerprints were on it and in fact it turned out that the bottle of beer in the victim's truck had turtle tim's fingerprints on it and they didn't bother checking that out before they told the jury k convict on either this theory that he was the shooter which ten of the jurors did or convict on this other theory so the prosecutor has more than just a duty to disclose they test the fact that they knew where robert dean was standing exactly and that he could not have seen what he claimed to have seen from that vantage point and that was unequivocally proven the subsequent trial of tim jones and it was when the police officers say that you know unless you knew the person you were looking at you couldn't the police officer said he was three hundred feet away it was in the dark and i put somebody on i knew in that spot or maybe he stood in that spot and had somebody he knew check it out and it was broad daylight not an hour after sundown as it was at the time of the crime and he could not make out who the person was he could not tell he only knew it because he knew it robert dean had no way of knowing it was mr dean that was there robert dean also said there was only one person there when the evidence the prosecutor went forward on the theory that both turtle tim and mr dean were present during that the evidence also showed that the only person who love there's no evidence that they went into the store to buy the beer together so i don't know when this agreement supposedly occurred now the court of appeal made a finding that they went into the store and in the store agreed to rob the shopkeeper said  turtle mr dean was in the store twenty minutes before the robbery then the kid came in and tried to buy some beer and he was under age so he went out he never said turtle to him and mr dean were in the store together discussing the the robbery there's just no evidence of that the other thing is robert dean did not testify to any statements about deciding to rob in fact robert dean didn't testify to any statements about the money according to one of the detectives on the case robert dean told him that a few days after the crime he had a phone call with mr dean and he asked mr dean well what did you do with the money according to this officer or he asked whether the victim had a lot of money and anthony dean said yes well that doesn't show anything about an intent to rob it just shows he had knowledge of how much money the victim had because he could have been a robber after the fact which is exactly the theory under which he would not have been guilty of felony murder if he had only rob the victim after the fact or perhaps total ten paid him office it was suggested by some other evidence in the case because he witnessed the  crime he would not have been guilty of felony murder and yet the jury decided his guilt thinking that there was a mandatory presumption i just asked the court to look at the evidence in this case when it's just terminating whether there was clear clear as that there's no excuse for them failing to conduct this experiment if they didn't we don't actually know whether they conducted it before the trial and withheld it or whether they conducted it after the trial but either way it violat constitutional rights to take it on that precise issue when the test was done to see whether robert dean could have actually observed this that the record doesn't tell us one way or the other that's that was done that's correct that's correct thank you for your argument counsel thank both sides for the argument the case just argued will be so that for decision the court will stand in recess for the day