if the primary issue obviously is the application of the standard view to what has been agreed and conceded by both sides at every stage of these proceedings to have been a constitutional error out in my brief there are two reasons why the application the jury's finding of true on that allegation is not just positive in this case the first reason is because according to other instructions provided to the jury they do not reach the issue of whether or not the allegation which is the penalty allegation is true until they have found guilty of attempted murder if they did not find the attempted murder count did not finish defendant guilty they would not have reached the allegation so for the first in the only way the jury could reach a first degree murder conviction was to find that it was a premeditated murder with malice aforethought the classic first degree murder instruction if they were to found the defendant guilty of murder on th faulty instruction it would have had to have been murder in the second degree because they were instructed that felony murder and all other forms of murder are murder in the second degree so because of the instructions that they were given even though they should never have been considering felony murder at all as  done with malice but express malice so we well i'm sorry your honor actually the instruction that they were given on the allegation does not have the words expressed now as it actually normally does but the one that they read is given in order to in order for the jury to determine between a murder conviction and whether first or second degree and a manslaughter conviction in other words it is not in any way dependent on their finding for sure that there is expressing how th the wrong gate meaning and i'm concert halls unconstitutional theory of guilt on attempted murder and which they got to because they were mis instructed and b the prosecution relied on the elements of implied malice he tracked tenable position is because if the jury reached their verdict on the count of guilt through an unconstitutional theory which the court is suggesting is a theoretical possibility here then what they did on a penalty enhancement which they cannot under of the penalty allegation is such that even if you had an implied malice theory to convict the language is not sufficiently clear that it requires that it requires i understand the court's position the language is essentially equivalent to express malice yet it doesn't say you need express malice and that language could in fact be consistent with a finding of implied malice there's structure and in the allegation is just not clear enough and what is notable as i stated in my brief is that the normally used college and struction on the penalty and allegation includes the words expressed malice and it was pointedly left out of the instruction in this particular case so they have the jury is has been put in a position of being confused they've been given improper instructions by the court which have been argued both in closing and in rebuttal by the prosecution and they then they reach a penalty enhancement that they may not understand properly what it means and certainty so what are we looking at here we know from the facts that he went on and he pulled it up to the head and shot him and we have the jury telling us is deprived of his right to a jury trial and no matter what the evidence of guilt the jury actually relied on an unconstitutional charge in order to find him guilty in this case you cannot find a defendant guilty of attempted murder on an implied malice theory as everyone agrees so this is not a matter of how bad the facts are it's a matter of can we actually know that one or two jurors for example in this general verdict didn't sink well i think you  murder was premeditated and deliberate invent that and i don't understand is argument that it came afterwards if the jury said that i don't see that there's any meaningful difference whether it's said that before they reached  such a thing as the absolute certainty test the most certain way to make sure that the jury knew what it was doing or did what we think it is it's a look at other verdicts if those other verdicts were instructed properly and the jury gave the answer there i don't know how much more certainly can be than that but how about the how about the argument that when they are given an instruction malice terminology is a method your i'd like leaving the jury there for as i understand it in a position of having to track back to what it went through on the think i think we're proceeding with with a false premise here i think if the jury indeed studied these instructions and took in the face value that's my point we have we have no error here no that's my point i'm tearing the life and through the act was deliberately performed with the knowledge of the danger and now i go to the enhancement and i look at that and i go back to what i just laid out for the jury which i think is why they may not go entirely linearly but they are instructed to go through express implied crittenton then they're instructed only if they found him guilty do they go to the  presumably they follow that instruction well i think there's there's a lot to be said about the difference between implied and expressed malice not being all that significant and that they are very confusing terms and i think that  instructions there's a definition of malice that can be implied or express if the jury looked at the instructions they looked at the elements the elements that you must find expressed they look further down it says now is can be implied or expressed it says well that's in that case but was able to look at two different theories and because you could tell from the jury's verdict the jury found premeditation and deliberation if they knew that it could be absolutely certain i'd also like to point out that the jury rejected the aggravated mayhem charge there's only one reason and that makes sense why they rejected because they didn't find you know if the jury did not believe that he was trying to disable them and there's only one other alternative that he was trying to kill him i think that's very clear from the evidence  the distinction between ordinary mayhem and aggravated mayhem is the specific intent to disable that's the only meaningful distinction there's also whether it's intentional or not but we know from another another jury instruction that the jury if there are no question i indicated in my brief i don't believe the jury's question can be looked at as being so clear that they had decided intent to kill it's equally amenable to the theory that they couldn't decide whether it was she couldn't reach the question of whether or not it was the terms willful and deliberate apply equally to the intentional doing of a dangerous and deliberately performed with conscious disregard for life as the definition of implied malice which means that by being given the instruction on the allegation absent the language which expressed malice the jury was twice instructed in a manner that would have permitted this entire verdict and finding to have been based upon an x and implied malice theory the fact that the prosecutor argue that theory both in the closing and in rebuttal completely belies the idea that the state has put forth that because of the way the instructions are set up there's no way the jury was thinking about implied malice they were and they were and told they should be thinking about it and they most likely were thinking