ultimate inquiry is whether there is a reasonable likelihood that the jury applied let me ask you a question about this i was trying to do that with the instructions and the way i read them was so i am on the jury trying to do the that and the instructions tell me if the defendant did a b and c which he's not charged with but if he did a b and c even if you're only persuaded by a preponderance of the evidence that he did a v and see you can infer that beyond a reasonable doubt he did which is like a b and c that looks to me like the logic of the instructions when i try to read the inference from the prior conduct instruction together with the beyond a reasonable doubt instruction and i'm having trouble understanding the inference enough to say that it doesn't matter i'm having trouble scoring it with the with with one chip in its pro well you're right i think that that the important instruction here is that it's celtic to point out and two point zero one which talks about circumstantial evidence in general because we're talking about i want to face i have thought when i was beyond a reasonable doubt in other words before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt each factor circumstances on which the inference necessarily rests must be proved beyond a reasonable doubt preponderance of the evidence but once they reach that point now they're told that you you're not required to but you name make an inference for once you clocking about an inference it gets back to you were worth it to find circumstantial evidence which talks about making inferences in viewpoint so i think that they would then know that although the first part may not apply certainly when you're talking about reaching an inference of guilt they're going to know since they're given tells it two point nine zero which is very clearly  the reasonable doubt standard that everyone knows that we've been applying for so many years so i think that's when you look at things in the totality you've got celtic point two point nine zero which tells them that the beyond a reasonable doubt you've got the two point zero and two point  one which are telling the jury that if you're going to reach an inference of guilt based on circumstance then that circumstance would have to be the only rational conclusion is this is a feel and so i think that when they look at this other instruction they're going to put the to put him to put all three really instructions together and understand that they need the reasonable doubt standard to apply and that doesn't lower the prosecution's burden of  and i think that you know this is where the d d p a comes into play because it might be that some courts might view the instructions as you've packed many california courts some have been a number of those are in at least at least whether or not it lowered the prosecution firstfruits several portable studies that it did several looked at and that it didn't so that's sort of the definition and that's why it was chosen that there's it's reasonable to reach either kind of a conclusion there there's it's undisputed right that the jury was instructed in accord with excerpts of record and it says page thirty eight at the bottom of the pay from the thirty seven handwriting on the right side that they received  help me again with the logic i never did get a clear answer to that if you find there's a fifty five percent chance that a person did a or b or c let's say fifty five percent is profound difference and ninety five percent is beyond a reasonable doubt and how can that support the inference that there's a ninety five percent chance that the person did  looking at was page excerpts of record page eighty five if you find that the defendant had this disposition you may have but are not required to infer that he was likely to commit and did commit the crimes of which for which he's accused i thought that meant that they could draw the inference from that along provided that it met the test for reaching for drawing inferences in general if that's the only rational conclusion that can be drawn help me on a little detail here i always have trouble with california cases because they don't give the trial judges enough secretary and i can never tell exactly what the jury got it looks as though the lawyers to admit his iraq has or copies to form instructions the judge marks them up and then the judge reads the instructions and i feel like what i ought to be down what the process is there that's correct that the old way of the customs different the judge writes them all out and and that gives the jury twelve copies one for each juror and we have the actual written instructions that the judge handed out in the record but that's not how it works right that the jury is given a copy of the written instructions they will they get the mark up so they may not be i think what i think it depends from from court to court but they may not get the exact one that you're seeing here i don't have it and instructions does the term ambiguous encompass conflicting instruction can you help us on what the jury actually got i was reading your one struction said i couldn't find a ponderous construct i thought gee i musta missed it i'll check again later retrospect that a reasonable juror standard and i think that the best analogy i can get there is that when jurors look at instructions as opposed to judges in retrospect jurors are like tourists at a traffic circle outside of boston or a major intersection in downtown los angeles there's a welter of songs some of them say chinatown this way some of them say museum that way but of construction that the specific overcomes the general it's applied to statues and the reason that it is this is just how intelligent people read or or listen and  where the judge says within the meaning of the preceding instruction the prosecution has the burden of proving via proponents of evidence i was thinking at that would just tell me if i was a juror this is an exception to the general b language in this case it's a human for that he did commit is the jury going to draw the distinction between infer that he did commit and find that he's guilty or convict him you know those are all  district courts have gone this way just that does that demonstrate that reasonable minds can differ i don't think that that's really where they had the means because how can we be sure that the courts that went one way on something were being unless there are other questions i have nothing further and two point nine zero didn't say that there was an exception to it and why doesn't that language within the meaning of the proceeding instruction at the excerpts of record eighty six means this is an exception to it well gaius it is as if you think the guy's probably beat his wife before that's enough for you to infer that he did it this time and that and that would go back to your honor's question about the specific taking precedence over the general and i would say that what we have is that it first falls doesn't say that it is an exception to the beyond a reasonable doubt standard and the second thing i would say is that they were given and an instruction to talk evidence in general and so well for me i'm not sure that i can go with you on that i've got an instruction there that says the government has the burden of proving every element of the crime beyond a reasonable doubt and i've got an instruction there that says the government has the burden of proving the material matters and circumstantial circumstantial evidence beyond reasonable doubt and then i've got an instruction that says within the meaning of the instruction about past offenses of domestic violence the government has the burden of proving them by a preponderance of evidence and i don't feel all that confused by it i feel like it just tells me in plain language that a reasonable doubt for reasonable prices public defenders like to say just doesn't apply to   i'm thinking i read this instruction and i think the guy probably committed a prior offense of domestic violence three times that were not charged i only think he probably did it i'm not so confident as to say beyond a reasonable doubt that he did it and i'm told that that's enough for me to think that he did it because i'm specifically told here that the perp prosecutors burden is only to prove the past occurrences by a preponderance of evidence and then the judge tells me i can infer from that alone that he did commit the crime that he's now accused of i don't see the ambiguity actually and i don't know that that the state would have to maybe certainly advisable but i think that when they give other instructions to deal with the types of circumstantial evidence be it flies or anything else they may be it would be advisable to say correct and i think that that there are certain a number of different types of circumstantial evidence could be given to particular circumstantial evidence instructions and i think once they once they see that the talking about an inference that's what pulls them my impression is that the circumstantial evidence paragraph is not so much focused on the nature of inference is it is the nature of circumstantial evidence and zest it  then is very specific that the beyond a reasonable doubt standard applies and the domestic violence paragraph is focused specifically on the inference that can be drawn and also the standard of proof so i just don't understand how the circumstantial evidence paragraph can cure you've got they they say two different things and there's only one way to read them together that i can see and that is circumstantial evidence generally beyond reasonable doubt standard evidence of past domestic violence proponents of evidence standard it's a fair way to read them it's not a conflict it's just specific overcoming the general and i don't see how all three in the way that i would read it is that there's two different types of evidence out there there's direct evidence and there's circumstantial evidence and with circumstantial evidence we have specific facts and that's that that you can only find guilty under two point zero one two point zero one hundred this way and then any other type of evidence that fit into that and any other instruction the only circumstantial in that instruction with respect to the first  i'm going to ask you to restate it costs i'm sure i share a feeling that this is a very bad man and that love to keep more locked up but i'm just not getting it say it again in different words maybe i'll get  different one talking about prior prior uncharged conduct the other paragraph which talked about how to deal with inferences in drawing inferences of guilt applies and it applies not to just this type of i think that the modification was the good idea but i would still submit that it's something that reasonable course to look at this and say that that two point